Arnel Management Company v. Lori Nicole Galvin et al

Filing 6

ORDER by Judge Cormac J. Carney remanding case to Orange County Superior Court, Case number 30-2015-00764872. (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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) Case No. SA CV 15-00166-CJC (DFMx)
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) ORDER REMANDING CASE TO
) STATE COURT
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The Court sua sponte REMANDS this action to the California Superior Court for

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ARNEL MANAGEMENT COMPANY,
Plaintiff,
v.
LORI NICOLE GALVIN,
Defendant.

the County of Orange 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

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state court must remain there until cause is shown for its transfer under some act of

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Congress.’” Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002) (quoting

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Great Northern R. Co. v. Alexander, 246 U.S. 276, 280 (1918)). Where Congress has acted

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to create a right of removal, those statutes are strictly construed against removal jurisdiction.

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Id.; Nevada v. Bank of America Corp., 672 F.3d 661, 667 (9th Cir. 2012); Gaus v. Miles,

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Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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Unless otherwise expressly provided by Congress, a defendant may remove “any

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civil action brought in a State court of which the district courts of the United States have

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original jurisdiction.” 28 U.S.C. § 1441(a); Dennis v. Hart, 724 F.3d 1249, 1252 (9th Cir.

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2013). The removing defendant bears the burden of establishing federal jurisdiction. Abrego

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Abrego v. Dow Chemical Co., 443 F.3d 676, 682 (9th Cir. 2006); Gaus, 980 F.2d at 566-67.

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“Under the plain terms of § 1441(a), in order properly to remove [an] action pursuant to that

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provision, [the removing defendant] must demonstrate that original subject-matter

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jurisdiction lies in the federal courts.” Syngenta Crop Protection, 537 U.S. at 33. Failure to

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do so requires that the case be remanded, as “[s]ubject matter jurisdiction may not be

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waived, and . . . the district court must remand if it lacks jurisdiction.” Kelton Arms Condo.

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Owners Ass’n v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). “If at any time

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before final judgment it appears that the district court lacks subject matter jurisdiction, the

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case shall be remanded.” 28 U.S.C. § 1447(c). It is “elementary that the subject matter

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jurisdiction of the district court is not a waivable matter and may be raised at anytime by

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one of the parties, by motion or in the responsive pleadings, or sua sponte by the trial or

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reviewing court.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988).

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A.

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The underlying action is an unlawful detainer proceeding, arising under and

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governed by the laws of the State of California. The state-court Complaint does not include

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any claim “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.

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§ 1331. Federal defenses or federal counterclaims do not provide a basis to remove an action

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which does not otherwise establish federal jurisdiction. “[T]he existence of federal

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jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses

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to those claims.” ARCO Envtl. Remediation, L.L.C. v. Dept. of Health and Envtl. Quality,

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213 F.3d 1108, 1113 (9th Cir. 2000). An “affirmative defense based on federal law” does not

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“render[] an action brought in state court removable.” Berg v. Leason, 32 F.3d 422, 426 (9th

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Cir. 1994). A “case may not be removed to federal court on the basis of a federal defense . . .

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even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit

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that the defense is the only question truly at issue in the case.” Franchise Tax Bd. v.

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Construction Laborers Vacation Trust, 463 U.S. 1, 14 (1983). There is no basis for federal

Federal Question Jurisdiction

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question jurisdiction.

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B.

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There is also no basis for diversity jurisdiction. Every defendant is not alleged to be

Diversity Jurisdiction

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diverse from every plaintiff. 28 U.S.C. § 1332(a). The Complaint does not allege damages in

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excess of $75,000, and Defendant has not shown, by a preponderance of the evidence, that

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the amount in controversy requirement has been met. Id.; Abrego Abrego, 443 F.3d at 683.

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It is also apparent from the state-court records that the underlying unlawful detainer action

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is a limited civil action that does not exceed $25,000. Additionally, the action is not

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removable on diversity grounds because Defendant appears to be a citizen of California,

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where the action was filed. See Notice of Removal at 2; 28 U.S.C. § 1441(b)(2) (stating that

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removal is not allowed if “any of the parties in interest properly joined and served as

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defendants is a citizen of the State in which such action is brought”).

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C.

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Section 1443(1) permits a defendant in state cases to remove the proceedings to the

28 U.S.C. § 1443

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federal district courts when a defendant is denied or cannot enforce in the courts of such

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State a right under any law providing for the equal civil rights of citizens in the United

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States. In order to successfully remove, the defendant must satisfy a two-prong test: 1) the

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rights allegedly denied must arise under a federal law providing for specific civil rights stated

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in terms of racial equality; and 2) the defendant must be denied or unable to enforce the

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rights in state courts. Johnson v. Mississippi, 421 U.S. 213, 219 (1975); City of Greenwood,

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Miss. v. Peacock, 384 U.S. 808, 827-28 (1966); Georgia v. Rachel, 384 U.S. 780, 792 (1966).

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Under the first prong, constitutional or statutory provisions of general applicability or under

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statuses not protecting against racial discrimination will not suffice. Johnson, 421 U.S. at

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219. Under the second prong, a defendant’s federal rights are left to the state courts except

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in rare situations where it can be clearly predicted that those rights will inevitably be denied

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by the very act of bringing the defendant to trial in state court. Peacock, 384 U.S. at 828.

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While a violation of 42 U.S.C. §§ 1981 and 1982 may satisfy the first prong of this

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test, Defendant cannot satisfy the second. Defendant alleges that she is being deprived of her
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rights to due process and equal protection by the application of California statutory

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provisions authorizing evictions in unlawful detainer proceedings. Notice of Removal at 9.

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She also asserts that she will be unable to raise her federal claims in state court. Id. at 11-12.

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These bare assertions are insufficient to invoke the Court’s jurisdiction. Defendant “must

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assert that the state courts will not enforce [a specified federal] right, and that allegation

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must be supported by reference to a state statute or a constitutional provision that purports

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to command the state courts to ignore the federal rights.” People of State of California v.

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Sandoval, 434 F.2d 635, 636 (9th Cir. 1970). Defendant has failed to identify any specific

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state statute or constitutional provision that commands the state courts to ignore her federal

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rights. See HSBC Bank USA v. Kubik, No. 13-1692, 2013 WL 1694670, at *3 (C.D. Cal.

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Apr.16, 2013) (“Defendant Kubik does not, and cannot, identify any California state law or

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constitutional provision that commands state courts to ignore an amendment to the U.S.

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Constitution.”). Moreover, the allegations she does make are entirely conclusory in nature.

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Section 1443(1) will not provide jurisdiction where allegations of discrimination are

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conclusory and lacking factual basis. See Bogart v. California, 355 F.2d 377, 380-81 (9th

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Cir. 1966). Consequently, removal is not proper under § 1443(1).

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D.

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This Court does not have subject matter jurisdiction over this case. IT IS

Conclusion

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THEREFORE ORDERED that this matter be REMANDED to the Superior Court of the

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State of California for the County of Orange.

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Dated: February 5, 2015

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___________________________________
CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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