HPROF, LLC v. Taylor

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 11/14/12 RECOMMENDING that 1 Notice of Removal filed by Michael Taylor be summarily remanded to the San Joaquin County Superior Court and that this case be closed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HPROF, LLC,

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Plaintiff,

No. 2:12-cv-2757 MCE DAD PS

vs.
MICHAEL TAYLOR,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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By Notice of Removal filed November 8, 2012, this unlawful detainer action was

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removed from the San Joaquin County Superior Court by defendant Michael Taylor, who has

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requested leave to proceed in forma pauperis and who is proceeding pro se. Accordingly, the

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matter has been referred to the undersigned for all purposes encompassed by Local Rule

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302(c)(21).

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It is well established that the statutes governing removal jurisdiction must be

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“strictly construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064

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(9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)). See also

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Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Provincial Gov’t of Martinduque v.

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Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “Federal jurisdiction must be rejected if

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there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d
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564, 566 (9th Cir. 1992). “‘The burden of establishing federal jurisdiction falls on the party

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invoking removal.’” Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.

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1994) (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769, 771 (9th Cir.1986)). See also

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Provincial Gov’t of Martinduque, 582 F.3d at 1087. Moreover, “the existence of federal

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

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those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d

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1108, 1113 (9th Cir. 2000). Where it appears, as it does here, that the district court lacks subject

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matter jurisdiction over a removed case, “the case shall be remanded.” 28 U.S.C. § 1447(c).

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In removing this action, defendant has alleged in a conclusory fashion that this

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“action is a civil action of which this court has original jurisdiction under 28 U.S.C. § 1331” and

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therefore “may be removed to this court by Defendant pursuant to the provisions of 28 U.S.C. §

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1441(b) . . .” (Notice of Removal (Doc. No. 1) at 2.) It is evident however from a reading of

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plaintiff’s complaint that this is nothing more than a garden-variety unlawful detainer action filed

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against the former owner of real property located in California and that it is based wholly on

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California law. “An unlawful detainer action, on its face, does not arise under federal law but is

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purely a creature of California law.” Wells Fargo Bank v. Lapeen, No. C 11-01932 LB, 2011

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WL 2194117, at *3 (N.D. Cal. June 6, 2011). See also People of the State of California v.

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Sandoval, 992 F.2d 635, 636 (9th Cir. 1971) (district court properly summarily remanded action

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to state court where defendants failed to identify any state law supporting the inference that

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rights they possessed would not be protected in state court). Moreover, removal on the basis of

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diversity jurisdiction is not available to defendants that are citizens of the state in which the state

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action was brought. 28 U.S.C. § 1441(b). Thus, defendant has failed to meet his burden of

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establishing a basis for federal jurisdiction over this action.

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Accordingly, IT IS RECOMMENDED that this action be summarily remanded to

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the San Joaquin County Superior Court and that this case be closed.

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/////
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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

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fourteen days after being served with these findings and recommendations, any party may file

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written objections with the court and serve a copy on all parties. A document presenting

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objections should be titled “Objections to Magistrate Judge’s Findings and Recommendations.”

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Any reply to objections shall be filed and served within seven days after service of the objections.

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The parties are advised that failure to file objections within the specified time may waive the

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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: November 14, 2012.

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DAD:6
Ddad1\orders.pro se\hprof2757.f&r.remand.ud

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