Larry Charette et al v. Don Anderson

Filing 7

ORDER REMANDING CASE TO STATE COURT by Judge Philip S. Gutierrez. IT IS THEREFORE ORDERED that this matter be, and hereby is, REMANDED to the Superior Court of California, for lack of subject matter jurisdiction. Remanding case to Superior Court State of CA for San Bermardino, Case number UDBS1700137 Case Terminated. Made JS-6 (lom) Modified on 2/13/2017 (lom). (mailed 2/13/17)

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r 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 LARRY CHARETTE, CASE NUMBER: EDCV 17-238-PSG(KKx) 11 Plaintiff 12 13 v. DON ANDERSON, ORDER REMANDING CASE TO STATE COURT 14 15 Defendant(s). 16 17 The Court sua vs onte REMANDS this action to the California Superior Court for the ig County of San Bernardino 19 II for lack of subject matter jurisdiction, as set forth below. "The right of removal is entirely a creature of statute and `a suit commenced in a state 20 ~~ court must remain there until cause is shown for its transfer under some act of Congress."' ll Svn~enta Cro,~ Protection, Inc. v. Henson,537 U.S. 28, 32(2002)(quoting Great Northern R. Co. 22 v. Alexander, 246 U.S. 276, 280(1918)). Where Congress has acted to create a right of removal, 23 those statutes are strictly construed against removal jurisdiction. dI Nevada v. Bank of America 24 Corv•,672 F.3d 661,667(9th Cir. 2012); Gaus v. Miles, Inc., 980 F.2d 564, 566(9th Cir. 1992). 25 Unless otherwise expressly provided by Congress, a defendant may remove "any civil 2 action brought in a State court of which the district courts of the United States have original 6 27 jurisdiction." 28 U.S.C.§ 1441(a); Dennis v. Hart, 724 F.3d 1249, 1252(9th Cir. 2013). The 28 removing defendant bears the burden of establishing federal jurisdiction. Abre ~o Abrego v. CV-136 (12/14) ORDER REMANDING CASE TO STATE COURT Page 1 of3 Dow Chemical Co.,443 F.3d 676,682(9th Cir. 2006); Gaus,980 F.2d at 566-67. "Under the plain 2 terms of§ 1441(a),in order properly to remove [an] action pursuant to that provision,[the 3 removing defendant] must demonstrate that original subject-matter jurisdiction lies in the federal 4 courts." ~n~enta Crop Protection, 537 U.S. at 33. Failure to do so requires that the case be 5 remanded, as "[s]ubject matter jurisdiction may not be waived, and ...the district court must 6 remand if it lacks jurisdiction." Kelton Arms Condo. Owners Assn v. Homestead Ins. Co., 346 7 F.3d 1190, 1192(9th Cir. 2003). "If at any time before final judgment it appears that the district 8 court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. g 1447(c). It is elementary that the subject matter jurisdiction of the district court is not a waivable matter and 9 " 10 maybe raised at anytime by one of the parties, by motion or in the responsive pleadings, or sua 11 sponte by the trial or reviewing court." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2 9th 12 ( Cir. 1988). From a review of the Notice of Removal and the state court records provided, it is evident 13 14 15 that the Court lacks subject matter jurisdiction over the instant case,for the following reasons. u No basis for federal question jurisdiction has been identified: 16 17 18 19 20 21 22 23 24 u The Complaint does not include any claim "arising under the Constitution,laws,  or treaties of the United States." 28 U.S.C. g 1331.  u Removing defendants) asserts that the affirmative defenses at issue give rise to federal question jurisdiction, but "the existence offederal jurisdiction depends solely on the plaintiffs claims for relief and not on anticipated defenses to those claims." ARCO Envtl. Remediation, L.L.C. v. Deft. of Health and Envtl. QualitX, 213 F.3d 1108, 1113(9th Cir. 2000). An "affirmative defense based on federal law" does not "render[] an action brought in state court removable." Berk v. Leason, 32 F.3d 422,426(9th Cir. 1994). A "case may not be removed to federal court on the basis of a federal defense ...even if the defense is anticipated in the plaintiffs complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Franchise T~ Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 14(1983). 25 The underlying action is an unlawful detainer proceeding, arising under and governed by the laws of the State of California. 2 6 27 28 CV-136 (12/14) ORDER REMANDING CASE TO STATE COCiRT Page 2 of3 1 ~✓ Diversity jurisdiction is lacking: 2 ~ Every defendant is not alleged to be diverse from every plaintiff. 28 U.S.C. 4 1332(a). 3 4 The Complaint does not allege damages in excess of $75,000, and removing defendants) has not plausibly alleged that the amount in controversy requirement has been met. dI see Dart Cherokee Basin Operating Co., LLC v. Owens,No. 13-719,2014 WL 7010692, at *6 (U.S. Dec. 15, 2014). 5 6 7 ~ The underlying unlawful detainer action is a limited civil action that does not exceed $25,000. 8 9 IT IS THEREFORE ORDERED that this matter be, and hereby is, REMANDED to the Superior 10 Court of California listed above,for lack of subject matter jurisdiction. 11 IT IS SO ORDERED. 12 13 Date: ~~.~//7 U 14 ' States District Judge 15 16 17 18 19 2 0 21 22 23 24 25 2 6 27 28 CV-136(12/14) ORDER REMANDING CASE TO STATE COURT Page 3 of 3

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