Lesnett v. San Jose

Filing 3

ORDER signed by District Judge Kimberly J. Mueller on 08/22/16 ORDERING this case is REMANDED to Solano County Superior Court. CASE CLOSED (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT LESNETT,

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No. 2:16-cv-1970-KJM-KJN

Plaintiff,
v.

ORDER

VERONICA SAN JOSE,
Defendant.

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On August 19, 2016, pro se defendant Veronica San Jose removed this unlawful
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detainer action from Solano County Superior Court, and moved to proceed in forma pauperis.
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ECF Nos. 1, 2. As explained below, the court REMANDS the case to the Solano County
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Superior Court and DENIES the motion to proceed in forma pauperis.
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When a case “of which the district courts of the United States have original
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jurisdiction” is initially brought in state court, a defendant may remove it to federal court. 28
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U.S.C. § 1441(a). There are two bases for federal subject matter jurisdiction: (1) federal question
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jurisdiction under 28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. A
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federal district court may remand a case sua sponte where a defendant has not
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established federal jurisdiction. See Enrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.
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1988) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921)). “If at any time
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before final judgment it appears that the district court lacks subject matter jurisdiction, the case

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shall be remanded.” 28 U.S.C. § 1447(c).

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Here, the court finds the case should be remanded to the Solano County Superior

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Court. The form complaint filed in the state court is for unlawful detainer only. ECF No. 1.

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Defendant grounds the removal on the court’s federal question jurisdiction, arguing that “[f]ederal

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question exists because [d]efendant’s [d]emurrer, a pleading[,] depend [sic] on the determination

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of [d]efendant’s rights and [p]laintiff’s duties under federal law.” Id. at 2. However, plaintiff is

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the master of the complaint and may “avoid federal jurisdiction by pleading solely state-law

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claims.” Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005). A defendant cannot rely

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on his answer or demurrer to provide the basis for determining federal question jurisdiction. See

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Farmco Stores, Inc. v. Newmark, 315 F. Supp. 396, 397 (E.D. Cal. 1970) (citing Gully v. F. Nat’l

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Bank, 299 U.S. 109, 113 (1936)).

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Accordingly, because plaintiff’s unlawful detainer complaint does not provide a

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basis for federal question jurisdiction, and defendant’s demurrer cannot provide the basis for

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removal jurisdiction here, this court cannot exercise subject matter jurisdiction over plaintiff’s

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single state-law claim for unlawful detainer. This case is REMANDED to Solano County

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Superior Court.

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IT IS SO ORDERED.
DATED: August 22, 2016

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UNITED STATES DISTRICT JUDGE

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