GMS Liberty LLC v. Linda M Hib et al

Filing 7

ORDER REMANDING ACTION TO STATE COURT by Judge Philip S. Gutierrez. !T IS THEREFORE ORDERED that this matter be, and hereby is,REMANDED to the Superior Court of California for San Joaquin County far lack of subject mat#er jurisdiction, Case number STK-CV-LUDR-2016-10540. Case Terminated. Made JS-6 (ab)

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1 2 ~ -6 2018 3' 4 current ~# 5 JS~~ 7 8 UN17ED STATES DISTRICT COURT 9 CENTRAI.DISTRICT OF CALIFORNIA 10 11 12 13 14 15 GMS LIBERTY LLC, hl4. CV 18-0766-PSG (AGR) Plaintiff, v. LIhiDA M. HIB, et al., ORDER REMANDING ACTlQN TO STATE GaURT Defendants. 1fi 17 18 ~9 The Court sua sponfe REMANDS this action to the California Superior 2D Court for the County of San Joaquin for lack of subject matter jurisdiction, as se# 2'f forth below."The right of removal is entirely a creature of statute and `a suit 22 commenced in a state court must remain there until cause is shown for its 23 transfer under some act of Congress.'n Syngenta Crop Prot., Inc. v. Henson, 537 2 4 U.S. 28, 32{2Q0z)(quo#ing Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280 2 5 ( 1918)). Generally, where Congress has acted to create a right of removal, those zs statutes are strictly construed against removal jurisdiction. ld.; Nevada v. Bank of 2 7 Am. Corp.,672 F.3d fi61,667(9th Cir. 2012); Gaus v. Miles, lnc., 980 F.2d 564, 2 8 5 (9th Cir. 1992). 66 1 Unless otherwise expressly provided by Congress, a defendant may 2 remove "any ci~ii action brought in a State court of which the district courts of the 3 United States have original jurisdiction." 28 U.S.C.§ 1441(a); Dennis v. Nart, 724 4 F.3d 1249, 1252(9th Cir. 2013). The removing defendant bears the burden of 5 establishing federal jurisdiction. Abrega Abrego v.Dow Chem. Co., 443 F.3d 676, 6 682 (9th Cir. 2406}; Gaus, 980 F.2d at 566-67. "Under the plain terms of 7 § 1441(a}, in order properly to remove [an] action pursuant to that provision,[the removing de#endant] must demonstrate that original subject-matter jurisdic#ion 9 10 lies in the federal courts." Syngenfa Crop Prot., 537 U.S. at 33. Failure to requires that the case be remanded, as "[s]ubject matter jurisdiction may not be 11 waived, and ...the district court must remand if it lacks jurisdiction." ftel~on 72 Arms Condo. Qwn~rs Assn v. Homestead fns. Co., 346 F.3d ~ 19p, 1192(9th Cir. 13 2003}. "If at any time before final judgment it appears that the district court lacks 14 subject matter jurisdic#ion, the case shall be remanded." 28 U.S.C.§ 1447(c). It 15 is "elementary that the subject matter jurisdiction of the district court is not a ' [6 waivable matter and may be raised at anytime by one of the parties, by motion or ' f7 in the responsive }pleadings, or sua sponte by the trial or reviewing eaurt." Emrich ' ! 8 v Touche Ross & Co., 846 F.2d 1190, 11.94 n.2 (9th Cir. 1988). . 19 From a review of the Notice of Removal and the state court records 2 0 provided, it is evident that the Court lacks subject mater jurisdiction over the 21 instant case, for the following reasons. 2 2 No basis for federal question jurisdiction has been identified. The 23 removing defendant relies principally on diversity jurisdiction, discussed below. 2 4 Although the removing defendant cites civil-rights removal pursuant to 28 U.S.C. 2 5 § 1443, defendant has not alleged facts sufficient to show that the statute's 2 6 requiremen#s are satisfied. Section 9443(1) provides for the removal of a civil 2 7 action filed "[a]gainst any person who is denied or cannot enforce in the courts of 2 $ such State a right under any law providing for the equal civil rights of citizens of 1 the United States ...." Even assuming that the removing defendant has 2 asserted rights provided "by explicit statutory enactment protecting equal racial 3 civil rights," Patel v. Del Taco, lnc., 446 F.3d 996, 999 (9th Cir. 2006)(cstation omitted), defendants) has not identified any "state sta#ute or a constitutional 5 provision that purports to command the state courts to ignore the federal rights" 6 or pointed,"to anything that suggests that the state court would not enforce 7 [ defendant's] civil rights in the state court proceedings." !d. (ci#ation omitted); see 8 also 6ogart v. California, 355 F.2d 377, 381-82 (9th Cir. 1966 (holding that 9 conclusionary statements lacking any factual basis cannot support removal under 1 ~l § 1443(1)). Nor does § 1443(2) provide any basis for removal, as it "confers a 11 privilege of removal only upon federal officers or agents and those authorized to 12 act with or for them in a~rmatively executing duties under any federal iaw 13 providing for equal civil rights" and on state officers who refuse to enforce 14 discriminatory state laws. City of Greenwood v. Peacock, 384 U.S. 8~8, 824 & 15 824 n.22 (196fi}, 16 Diversity jurisdiction is Jacking as well. Even if the Court assumes that all 17 parties are diverse in citizenship, 28 U_S.C. § 1332(a)(1), the rema~ed unlawful- 18 detainer complaint does no# allege damages exceeding $75,004, and the 19 removing defendant has not plausibly alleged that the amount in controversy ~a requirement F~as been met. 28 U.S.C. 1332(a}; see Dar# Cherokee Basrn 21 Operating Co. v. Owens, 135 S. C#. 547, 554 {2014), On the contrary, the plain#iff 2 2 in the removed action has indicated on the form complaint that the amount at 2 3 issue does not exceed $70,000. 2 4 ! IS THEREFORE ORDERED that this mafter be, and hereby is, T 25 REMANDED to the Superior Court of California for San Joaquin County far lack 2 6 of subject mat#er jurisdiction. 27 2 8 3 1 DATED: PHILIP S. GUTIERREZ nited States District Judge 2 3 4 5 6 7 8 9 ~o 11 12 13 14 15 16 17 18 19 2d 21 2 2 23 2 4 25 2 6 27 2 8 0

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