Lianming Xiong v. Pedro E. Ramirez et al

Filing 8

MINUTES OF IN CHAMBERS - ORDER RE DEFENDANT RAMIREZ'S NOTICE OF REMOVAL by Judge Dolly M. Gee: The Notice of Removal and Ramirez Declaration do not provide a basis for federal jurisdiction. In light of the foregoing, this case is hereby REMANDED to the San Bernardino County Superior Court, Case Number UDFS164368, for lack of subject matter jurisdiction. ( Case Terminated. Made JS-6 ) Court Reporter: Not Reported. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

ED CV 16-1993-DMG (KKx)

Title Lianming Xiong v. Pedro E. Ramirez

JS-6 / REMAND

September 22, 2016
Page

1 of 2

Present: The Honorable

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS - ORDER RE DEFENDANT RAMIREZ’S NOTICE OF
REMOVAL [1]
On September 19, 2016, pro se Defendant Pedro E. Ramirez filed his notice of removal
(“NOR”), removing this case from the San Bernardino County Superior Court to this Court.
[Doc. # 1.] Ramirez claimed that this Court has both federal question and diversity jurisdiction
because “Plaintiff Trust and the Defendant are citizens of different states,” and “Plaintiff are [sic]
Debt Collectors identified under [the Fair Debt Collection Practice Act (‘FDCPA’)],” “subject to
compliance with . . . [the] Fair Credit Reporting Act,” and “possibl[y] discriminat[ed] [against
Ramirez] under the . . . Fair Housing Act.” NOR at ¶¶ 4, 9. The complaint, however, was not
attached to the NOR, and the Court cannot determine from the NOR or Ramirez’s submitted
declaration (“Ramirez Decl.”) [Doc. # 3] whether federal jurisdiction is proper. See Acosta v.
Direct Merchants Bank, 207 F. Supp. 2d 1129, 1131 (S.D. Cal. 2002) (“The court’s removal
jurisdiction must be analyzed on the basis of the pleadings at the time of removal.”).
In establishing diversity jurisdiction, “the defendant bears the burden of actually proving
the facts to support jurisdiction.” Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403 (9th
Cir. 1996) (quoting Gaus v. Miles, 980 F.2d 564, 566–67 (9th Cir. 1992)). As to diversity
jurisdiction, the defendant must present “summary-judgement-type evidence” relevant to the
amount in controversy and the citizenship of the parties. Valdez v. Allstate Ins. Co., 372 F.3d
1115, 1117 (9th Cir. 2004); Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001)
(“[A] party seeking to invoke diversity jurisdiction should be able to allege affirmatively the
actual citizenship of the relevant parties.”). Ramirez attached to the NOR only this Court’s Civil
Cover Sheet. [Doc. # 1-1.] Neither the NOR nor the Cover Sheet state where Xiong resides. In
fact, it is not clear from the NOR whether Ramirez’s assertion of diversity applies to Xiong or
Wells Fargo. See NOR at ¶ 5 (“Plaintiff, Lianming Xiong acting as trustee to Wells Fargo Bank,
National Association not a citizen of California.”). Although Wells Fargo is not a California
citizen, Rouse v. Wachovia Mortg., FSB, 747 F.3d 707, 709 (9th Cir. 2014), it is also not a party
to this suit. “Since the party asserting diversity jurisdiction bears the burden of proof,
[Ramirez]’s failure to specify [Xiong’s] state citizenship [i]s fatal to [Ramirez’s] assertion of
diversity jurisdiction.” Kanter, 265 F.3d at 857–58 (citation omitted).
CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

ED CV 16-1993-DMG (KKx)

Title Lianming Xiong v. Pedro E. Ramirez

Date

JS-6 / REMAND

September 22, 2016
Page

2 of 2

Moreover, Ramirez has not proven by a preponderance of the evidence that the amount in
controversy exceeds $75,000. His NOR states that the action against him is to gain possession of
property “worth more than $75,000.” NOR at ¶ 8. Without a complaint to review or any other
evidence, such “[c]onclusory allegations . . . are insufficient.” Matheson v. Progressive
Specialty Ins. Co., 319 F.3d 1089, 1090–91 (9th Cir. 2003).1
Additionally, the NOR does not raise conclusive federal question jurisdiction. “The
presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint
rule,’ which provides that federal jurisdiction exists only when a federal question is presented on
the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). Ramirez’s failure to provide the Court with the state action complaint, alone,
compels the Court to conclude that he has not met his burden of establishing subject-matter
jurisdiction. Furthermore, Ramirez’s arguments in support of federal-question jurisdiction are
that Xiong is a debt collector under the FDCPA, that Xiong may have failed to comply with the
Fair Credit Reporting Act, and that Xiong may have unlawfully discriminated against Ramirez
under the Fair Housing Act. These are all either federal defenses or federal counterclaims, which
do not create federal-question jurisdiction. Holmes Group, Inc. v. Vornado Air Circulation Sys.,
Inc., 535 U.S. 826, 831 (2002); see also Vaden v. Discover Bank, 556 U.S. 49, 54 (2009)
(“[F]ederal-court jurisdiction cannot be invoked on the basis of a defense or counterclaim . . . .”).
“Where doubt regarding the right to removal exists, a case should be remanded to state
court.” Matheson, 319 F.3d at 1090. The NOR and Ramirez Declaration do not provide a basis
for federal jurisdiction. In light of the foregoing, this case is hereby REMANDED to the San
Bernardino County Superior Court for lack of subject matter jurisdiction.
IT IS SO ORDERED.

1

Ramirez also contends that he has “a pending lawsuit for more than $500,000 in damages against
[Xiong].” Ramirez Decl. at ¶ 1. If that lawsuit is distinct from the instant action, only Xiong may remove to federal
court on the basis of those claims. If that action arises from a counterclaim Ramirez filed against Xiong in this
action, then Ramirez may have waived his right to remove the case to federal court. See Koch v. Medici Ermete &
Figli S.R.L., No. 13-1411 CAS (PJWx), 2013 WL 1898544, at *2-3 (C.D. Cal. May 6, 2013) (permissive counterand cross-claim filed in state court waive removability, while such compulsory claims do not).
CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT