The Bank of New York Mellon v. Timothy McNutt et al

Filing 7

(IN CHAMBERS) COURT ORDER by Judge Percy Anderson: Remanding case to SUPERIOR COURT OF CALIFORNIA - RIVERSIDE, Case number RIC1705505: Defendant has failed to meet his burden of showing that federal subject matter jurisdiction exists over this action or that removal pursuant to 28 U.S.C. § 1443 is available. Because the Court lacks subject matter jurisdiction, this action is hereby remanded to the Riverside County Superior Court, Case No. RIC1705505. Please refer to the Court's order for specifics. (Case Terminated. Made JS-6.) (cr)

JS-6

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

ED CV 17-1211 PA (KKx)

Title

Bank of New York Mellon v. Timothy McNutt

Present: The Honorable

Date

June 21, 2017

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

V.R. Vallery

Not Reported

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS - COURT ORDER

The Court is in receipt of a Notice of Removal filed by defendant Timothy McNutt
(“Defendant”) on June 19, 201 . Plaintiff The Bank of New York Mellon (“Plaintiff”) filed its
Complaint in Riverside County Superior Court asserting a single cause of action for unlawful detainer.
Defendant, who is appearing pro se, asserts that this Court has subject matter jurisdiction on the basis of
28 U.S.C. § 1443, which creates federal removal jurisdiction for actions brought against people who
cannot enforce in state court “any law providing for the equal rights of citizens of the Untied States.” 28
U.S.C. § 1443(1). Defendant also invokes the Court’s federal question jurisdiction, 28 U.S.C. § 1331.
Federal courts are of limited jurisdiction, having subject matter jurisdiction only over matters
authorized by the Constitution and Congress. See, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994). A “strong presumption” against removal
jurisdiction exists. Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). In seeking removal, the
defendant bears the burden of proving that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th
Cir. 1986).
Under 28 U.S.C. § 1331, this Court has original jurisdiction over civil actions “arising under”
federal law. Removal based on § 1331 is governed by the “well-pleaded complaint” rule. Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987). Under the rule,
“federal jurisdiction exists only when a federal question is presented on the face of plaintiff’s properly
pleaded complaint.” Id. at 392, 107 S. Ct. at 2429, 96 L. Ed. 2d 318. If the complaint does not specify
whether a claim is based on federal or state law, it is a claim “arising under” federal law only if it is
“clear” that it raises a federal question. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Thus,
plaintiff is generally the “master of the claim.” Caterpillar, 482 U.S. at 392, 107 S. Ct. at 2429, 96 L.
Ed. 2d 318. There is no federal question jurisdiction simply because there is a federal defense to the
claim. Id. at 392, 107 S. Ct. at 2429, 96 L. Ed. 2d 318. The only exception to this rule is where
plaintiff’s federal claim has been disguised by “artful pleading,” such as where the only claim is a federal
one or is a state claim preempted by federal law. Sullivan v. First Affiliated Sec., Inc., 813 F. 2d 1368,
1372 (9th Cir. 1987).

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

ED CV 17-1211 PA (KKx)

Date

Title

June 21, 2017

Bank of New York Mellon v. Timothy McNutt

Here, the Complaint contains a single cause of action for unlawful detainer. No federal claim is
alleged. Defendant’s Notice of Removal alleges that Plaintiff has “caused Defendant harm . . . under
title 42 USC 1983 and 1985” and that “Plaintiff ignores the evaluation of the violations of the federal
housing issues, violation of his due process rights to review under, as well as his rights to take action
against illegal discrimination and retaliatory eviction.” These and similar allegations do not constitute a
basis for removal. Neither a federal defense nor an actual or anticipated federal counterclaim form a
basis for removal. Vaden v. Discover Bank, 556 U.S. 49, 61-62, 129 S. Ct. 1262, 1272, 173 L. Ed. 2d
206 (2009). Therefore, Defendant has failed to show that federal question jurisdiction exists.
A defendant “who is denied or cannot enforce” his or her civil rights in state court may remove a
civil action or criminal prosecution to federal court. 28 U.S.C. § 1443. Section 1443(1) was enacted “to
remove from state courts groundless charges not supported by sufficient evidence when these charges are
based on race and deny one his federally protected equal rights as guaranteed by Title II of the 1964
Civil Rights Act.” Walker v. Georgia, 417 F.2d 5, 9 (5th Cir. 1969). Section 1443 provides, in pertinent
part, “Any of the following civil actions or criminal prosecutions, commenced in a State court may be
removed by the defendant to the district court of the United States for the district and division embracing
the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of
such State a right under any law providing for the equal civil rights of citizens of the United States, or of
all persons within the jurisdiction thereof . . . .” 28 U.S.C. § 1443(1).
A petition for removal under § 1443(1) must satisfy the two-part test
articulated by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 788-92,
794-804, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966) and City of Greenwood,
Miss. v. Peacock, 384 U.S. 808, 824-28, 86 S. Ct. 1800, 16 L. Ed. 2d 944
(1966). “First, the petitioners must assert, as a defense to the prosecution,
rights that are given to them by explicit statutory enactment protecting equal
racial civil rights.” California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970)
“Second, petitioners must assert that the state courts will not enforce that
right, and that allegation must be supported by reference to a state statute or a
constitutional provision that purports to command the state courts to ignore
the federal rights.” Id.
Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006). Defendant does not allege any wellpleaded facts that would support removal under § 1443 and therefore Defendant meets neither part of the
Supreme Court’s test in Georgia v. Rachel. Other than allegations concerning his displeasure with the
Superior Court and that the “unlawful detainer trial courts rubber stamp all plaintiff actions for evictions
and do not protect defendant property interest,” which are insufficient as a matter of law, there are no
proper allegations or any other indication that Defendant has properly sought to invoke a law that
provides “for the equal civil rights of citizens of the United States,” or that he is unable to pursue such a
claim or that the state court is unable or unwilling to enforce such a claim. Nothing in Defendant’s
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JS-6

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

ED CV 17-1211 PA (KKx)

Date

Title

June 21, 2017

Bank of New York Mellon v. Timothy McNutt

Notice of Removal satisfies his burden to show that any potential deficiencies in California’s unlawful
detainer procedures “command[s] the state courts to ignore” Defendant’s federal rights. See Patel, 446
F.3d at 998-99. Therefore, the Notice of Removal’s allegations are insufficient to establish the Court’s
jurisdiction under § 1443.
For the foregoing reasons, Defendant has failed to meet his burden of showing that federal
subject matter jurisdiction exists over this action or that removal pursuant to 28 U.S.C. § 1443 is
available. Because the Court lacks subject matter jurisdiction, this action is hereby remanded to the
Riverside County Superior Court, Case No. RIC1705505. See 28 U.S.C. § 1447(c). Defendant’s
Request to Proceed In Forma Pauperis (Docket No. 2) is denied as moot.
IT IS SO ORDERED.

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