Brar v. Fagundes

Filing 3

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/20/13: IT IS HEREBY ORDERED that defendant's motion to proceed in forma pauperis is granted 2 and RECOMMENDED that this case be remanded to Placer County Superior Court for lack of jurisdiction. F&R referred to Judge Lawrence K. Karlton. Objections to F&R due within fourteen days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASBIR S. BRAR, TRUSTEE OF THE
JASBIR S. BRAR LIVING TRUST,

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Plaintiff,

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No. 2:13-cv-0422 LKK AC PS

vs.

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PATRICK FAGUNDES,

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Defendant.

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ORDER AND
FINDINGS & RECOMMENDATIONS
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Plaintiff Jasbir S. Brar (“Brar”) commenced an unlawful detainer action in Placer

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County Superior Court on February 25, 2013. Notice of Removal (“NOR”), Ex. 1. Defendant

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Patrick Fagundes removed this action on March 4, 2013 purportedly on the basis of subject

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matter jurisdiction, along with a request to proceed in forma pauperis.

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Defendant has submitted the affidavit required by § 1915(a) showing that he is

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unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in

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forma pauperis will be granted. 28 U.S.C. § 1915(a).

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Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), when a party seeks to proceed in forma

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pauperis, the court shall dismiss the case if the court determines that the plaintiff fails to state a

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claim upon which relief can be granted. A plaintiff fails to state a claim when the court lacks
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jurisdiction over the subject matter of the complaint. See Fed. R. Civ. P. 12(b)(1).

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Courts “strictly construe the removal statute against removal jurisdiction,” and

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“the defendant always has the burden of establishing that removal is proper.” Gaus v. Miles,

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Inc., 980 F.2d 564, 566 (9th Cir. 1992). Furthermore, “jurisdiction must be rejected if there is

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any doubt as to the right of removal in the first instance.” Id. Removal is proper only if the

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court could have exercised jurisdiction over the action had it originally been filed in federal

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court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). The “presence or absence of

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federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides

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that federal jurisdiction exists only when a federal question is presented on the face of the

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plaintiff's properly pleaded complaint.” Id.

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With the Notice of Removal, defendant provides a copy of the complaint filed in

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Placer County Superior Court. The complaint contains a single claim for unlawful detainer. In

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defendant’s removal notice, it is asserted that the court has jurisdiction pursuant to defenses that

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defendant intends to assert in this case based on resolution of claims raised in a separate, related

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state case, Fagundes v. JP Morgan Chase Bank, N.A., et al., Case No. SCV 0032504. See NOR

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at 2. Plaintiff’s complaint for unlawful detainer does not state claims under any federal law.

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Rather, defendant appears to assert federal jurisdiction by virtue of defendant’s defense to the

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action.

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Removal, however, cannot be based on a defense, counterclaim, cross-claim, or

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third-party claim raising a federal question, whether filed in state or federal court. See Vaden v.

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Discover Bank, 556 U.S. 49 (2009); Hunter v. Philip Morris USA, 582 F.3d 1039, 1042-43 (9th

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Cir. 2009); Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 327 (5th Cir. 1998);

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Preciado v. Ocwen Loan Servicing, 2011 WL 977819, at *1 (C.D. Cal. Mar. 18, 2011); Fed.

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Nat'l Mortg. Ass'n. v. Bridgeman, 2010 WL 5330499, at *4 (E.D. Cal. Dec. 20, 2010). The

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complaint indicates that the only cause of action is one for unlawful detainer, which arises under

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state law and not under federal law. Thus, this action does not arise under federal law, and
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jurisdiction under 28 U.S.C. § 1331 does not exist.
For the reasons set forth above, IT IS HEREBY ORDERED that defendant’s
motion to proceed in forma pauperis is granted; and
IT IS HEREBY RECOMMENDED that this case be remanded to Placer County
Superior Court for lack of jurisdiction.
These findings and recommendations are submitted to the United States District

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

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days after being served with these findings and recommendations, defendants may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Any response to the objections shall be filed and served

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within fourteen days after service of the objections. Defendants are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court's order.

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DATED: March 20, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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/mb;brar0422.remand

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