Kern Residential Holdings, LLC v. Kingsby et al

Filing 5

ORDER REMANDING Action to Kern County Superior Court, signed by District Judge Anthony W. Ishii on 2/27/13: Certified copy of remand order sent to other court. (CASE CLOSED)(Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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v.
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JOHN KINGSBY and MARIA SERGIO, )
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Defendants.
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____________________________________)
KERN RESIDENTIAL HOLDINGS,
LLC,

1:13-CV-274 AWI JLT
ORDER REMANDING
ACTION TO THE KERN
COUNTY SUPERIOR COURT

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Defendant Maria Sergio, who is proceeding pro se, removed this case from the Superior

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Court of Kern County on February 25, 2013. See Court’s Docket Doc. No. 1. Defendant asserts

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that the basis for removal is the presence of a federal question. Specifically, Defendant contends

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that she filed a demurrer to Plaintiff’s unlawful detainer complaint in which she alleged that

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Plaintiff failed to comply with 12 U.S.C. § 5220. It is through the demurrer, and specifically the

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invocation of 12 U.S.C. § 5220, that Defendant asserts jurisdiction exists. See id. at ¶¶ 6-10.

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A district court has “a duty to establish subject matter jurisdiction over the removed

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action sua sponte, whether the parties raised the issue or not.” United Investors Life Ins. Co. v.

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Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). The removal statute (28 U.S.C. §

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1441) is strictly construed against removal jurisdiction. Geographic Expeditions, Inc. v. Estate of

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Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov’t of Marinduque v. Placer Dome,

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Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). It is presumed that a case lies outside the limited

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jurisdiction of the federal courts, and the burden of establishing the contrary rests upon the party

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asserting jurisdiction. Geographic Expeditions, 599 F.3d at 1106-07; Hunter v. Philip Morris

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USA, 582 F.3d 1039, 1042 (9th Cir. 2009). “The strong presumption against removal

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jurisdiction” means that “the court resolves all ambiguity in favor of remand to state court.”

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Hunter, 582 F.3d at 1042; Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). That is, federal

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jurisdiction over a removed case “must be rejected if there is any doubt as to the right of removal

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in the first instance.” Geographic Expeditions, 599 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d

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1480, 1485 (9th Cir. 1996); Gaus, 980 F.2d at 566. “If at any time prior to judgment it appears

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that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. §

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1447(c); Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th Cir. 2001). Remand under 28 U.S.C.

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§ 1447(c) “is mandatory, not discretionary.” Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir.

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1997); see California ex. rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). That

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is, the court “must dismiss a case when it determines that it lacks subject matter jurisdiction,

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whether or not a party has filed a motion.” Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir.

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1995).

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“The presence or absence of federal question jurisdiction is governed by the ‘well-

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pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal

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question is presented on the face of the plaintiff’s properly pleaded complaint.” California v.

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United States, 215 F.3d 1005, 1014 (9th Cir. 2000); see Dynegy, 375 F.3d at 838; Duncan, 76

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F.3d at 1485. Under the “well-pleaded complaint” rule, courts look to what “necessarily appears

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in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything in

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anticipation of avoidance of defenses which it is thought the defendant may interpose.”

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California, 215 F.3d at 1014. Accordingly, “a case may not be removed on the basis of a federal

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defense . . . even if the defense is anticipated in the plaintiff’s complaint and both parties concede

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that the federal defense is the only question truly at issue.” Caterpillar, Inc. v. Williams, 482

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U.S. 386, 392 (1987); Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002);

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see also Vaden v. Discover Bank, 129 S. Ct. 1262, 1278 (2009) (“It does not suffice to show that

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a federal question lurks somewhere inside the parties’ controversy, or that a defense or
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counterclaim would arise under federal law.”).

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Here, Defendant has not shown that removal was appropriate. The complaint filed by

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Plaintiff is an unlawful detainer action that is based entirely on California law. As mentioned

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above, Defendant relies on his demurrer to establish federal jurisdiction. Fairbanks is attempting

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to remove this case on the basis of a federal defense. This is improper, because the defensive

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invocation of 12 U.S.C. § 5220 cannot form the basis of this Court’s jurisdiction. See Vaden 129

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S.Ct. at 1278; Caterpillar, 482 U.S. at 392; Wayne, 294 F.3d at 1183; California, 215 F.3d at

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1014; Fannie Mae v. Reyes, 2012 U.S. Dist. LEXIS 58002 (S.D. Cal. Apr. 25, 2012); Fannie

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Mae v. Brooks, 2012 U.S. Dist. LEXIS 30627 (C.D. Cal. Mar. 7, 2012). Because there is no

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federal question appearing in Plaintiff’s complaint, Defendant has failed to invoke this Court’s

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subject matter jurisdiction. Remand to the Kern County Superior Court is appropriate and

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mandatory. 28 U.S.C. § 1447(c); Geographic Expeditions, 599 F.3d at 1107; Bruns, 122 F.3d at

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1257; Page, 45 F.3d at 133.

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Accordingly, IT IS HEREBY ORDERED that, per 28 U.S.C. § 1447(c), due to this

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Court’s lack of subject matter jurisdiction, this case is REMANDED forthwith to the Superior

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Court of Kern County.

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IT IS SO ORDERED.

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Dated:
0m8i78

February 27, 2013
SENIOR DISTRICT JUDGE

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