California Equirty Management Group, Inc. v. Ticer et al

Filing 3

ORDER REMANDING MATTER to Merced County Superior Court signed by District Judge Anthony W. Ishii on 10/17/2013. Copy of remand order sent to other court. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA EQUITY MANAGEMENT
GROUP, INC.,
Plaintiff

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v.

CASE NO. 1:13-CV-1647 AWI SAB
ORDER REMANDING MATTER TO
THE MERCED COUNTY SUPERIOR
COURT

STACEY TICER, RICHARD TICER, and
DOES 1 to 10, inclusive,
Defendants

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Defendants Stacey and Richard Ticer, who are proceeding pro se, removed this case from

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the Superior Court of Merced County on October 11, 2013. See Court‟s Docket Doc. No. 1.

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Defendants assert that the basis for removal is the presence of a federal question. Specifically,

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Defendants contend that they filed an answer to Plaintiff‟s unlawful detainer complaint in which

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they alleged that Plaintiff failed to comply with 12 U.S.C. § 5201. It is through the invocation of

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12 U.S.C. § 5201 that Defendants assert that jurisdiction exists. See id.

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

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

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& Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). The removal statute (28 U.S.C. § 1441) is

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strictly construed against removal jurisdiction. Geographic Expeditions, Inc. v. Estate of Lhotka,

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599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov‟t of Marinduque v. Placer Dome, Inc., 582

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

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

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jurisdiction. Geographic Expeditions, 599 F.3d at 1106-07; Hunter v. Philip Morris USA, 582

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F.3d 1039, 1042 (9th Cir. 2009). “The strong presumption against removal jurisdiction” means

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that “the court resolves all ambiguity in favor of remand to state court.” Hunter, 582 F.3d at 1042;

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Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). That is, federal jurisdiction over a

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removed case “must be rejected if there is any doubt as to the right of removal in the first

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instance.” Geographic Expeditions, 599 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d 1480, 1485

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

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court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); Gibson

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

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mandatory, not discretionary.” Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997); see

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California ex. rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). That is, the court

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“must dismiss a case when it determines that it lacks subject matter jurisdiction, whether or not a

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party has filed a motion.” Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995).

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

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complaint rule,‟ which provides that federal jurisdiction exists only when a federal question is

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presented on the face of the plaintiff‟s properly pleaded complaint.” California v. United States,

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215 F.3d 1005, 1014 (9th Cir. 2000); see Dynegy, 375 F.3d at 838; Duncan, 76 F.3d at 1485.

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Under the “well-pleaded complaint” rule, courts look to what “necessarily appears in the

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

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of avoidance of defenses which it is thought the defendant may interpose.” California, 215 F.3d at

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1014. Accordingly, “a case may not be removed on the basis of a federal defense . . . even if the

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defense is anticipated in the plaintiff‟s complaint and both parties concede that the federal defense

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is the only question truly at issue.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987);

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Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002); see also Vaden v.

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Discover Bank, 129 S. Ct. 1262, 1278 (2009) (“It does not suffice to show that a federal question

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lurks somewhere inside the parties‟ controversy, or that a defense or counterclaim would arise

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under federal law.”).

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Here, Defendants have 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 state law. As mentioned above,
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Defendants rely on their answer to establish federal jurisdiction. Defendants are attempting to

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

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12 U.S.C. § 5201 cannot form the basis of this Court‟s jurisdiction. See Vaden, 129 S.Ct. at 1278;

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Caterpillar, 482 U.S. at 392; Wayne, 294 F.3d at 1183; California, 215 F.3d at 1014; Deutsche

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Bank Nat‟l Trust Co. v. Eaddy, 2012 U.S. Dist. LEXIS 133415, *3-*4 (N.D. Cal. Sept. 18, 2012);

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Oates Revocable Trust Dated June 23, 2003 v. Rizon, 2011 U.S. Dist. LEXIS 95547 (C.D. Cal.

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Aug. 23, 2011). Because there is no federal question appearing in Plaintiff‟s complaint,

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Defendants have failed to invoke this Court‟s jurisdiction. Remand to the Merced County

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Superior Court is appropriate and mandatory. 28 U.S.C. § 1447(c); Geographic Expeditions, 599

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F.3d at 1107; Bruns, 122 F.3d at 1257; Page, 45 F.3d at 133.
Accordingly, IT IS HEREBY ORDERED that, per 28 U.S.C. § 1447(c), due to this Court‟s

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

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Merced County.

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IT IS SO ORDERED.
Dated: October 17, 2013
SENIOR DISTRICT JUDGE
DEAC_Signature-END:

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0m8i788

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