Nakashima v. Burton et al

Filing 5

ORDER signed by District Judge Kimberly J. Mueller on 10/31/2016 ORDERING that this action is REMANDED to San Joaquin County Superior Court. The 3 , 4 Motion for In Forma Pauperis status is DENIED as moot. Copy of remand order sent to other court. CASE CLOSED. (Butolph, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN NAKASHIMA,

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No. 2:16-cv-02483-KJM-AC

Plaintiff,
v.

ORDER

EMILIE R. BURTON, KENNETH R.
BURTON JR., and DOES 1 to 5,
Defendant.
Defendants Emilie Burton and Kenneth Burton, Jr. (collectively “defendants”)

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removed this unlawful detainer action from San Joaquin County Superior Court on October 18,

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2017. ECF No. 1. Defendants also move to proceed in forma pauperis (IFP). ECF Nos. 3-4. As

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explained below, the court remands this case to the San Joaquin County Superior Court for lack

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of subject matter jurisdiction and denies defendants’ IFP request as moot.

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Removal to federal court is proper where the federal court would have original

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subject-matter jurisdiction over the complaint. 28 U.S.C. § 1441. A federal court has “federal

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question” subject-matter jurisdiction where the complaint is predicated on a claim or right arising

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under the “Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. To properly

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invoke federal jurisdiction, the basis for federal jurisdiction must be ascertainable from the face of

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the complaint, and cannot derive from an anticipated defense in the case. Louisville & Nashville

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R. Co. v. Mottley, 211 U.S. 149, 152 (1908).
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If a case is improperly removed from state to federal court, the federal court has an

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independent responsibility to remand that case back to state court. This responsibility derives

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from the mandate in 28 U.S.C. § 1447(c) to remand a case “[i]f at any time before final judgment

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it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c).

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Moreover, it is the district court’s “duty to establish subject matter jurisdiction over [a] 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). Courts construe removal statutes

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strictly against removal and place the burden on a defendant to demonstrate that removal is

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proper. Moore–Thomas v. Alaska Airlines, Inc., 553 F.3d 1241,1244 (9th Cir. 2009) (citing Gaus

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v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The ‘strong presumption’ against removal

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means that the defendant always has the burden of establishing that removal is proper.”)).

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Here, defendants assert this court has subject matter jurisdiction under 28 U.S.C.

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§ 1441. Notice Removal 2, ECF No. 1. The duty thus lies with the court to determine if federal

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jurisdiction in fact adheres. 28 U.S.C. § 1447(c). Defendants do not assert that the complaint

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itself raises a federal question. Id. Instead, defendants assert that a federal question exists

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because “Defendant’s Answer, a pleading depend on the determination of Defendant’s rights and

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Plaintiff’s duties under federal law.” Notice Removal 2 (verbatim transcription). However,

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removal cannot be based only on a defense that raises a federal question. Vaden v. Discover

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Bank, 556 U.S. 49, 54 (2009) (“federal-court jurisdiction cannot be invoked on the basis of a

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defense or counterclaim”); Nationstar, LLC v. Graves, No. 1:12-CV-02018-AWI, 2012 WL

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6720368, at *2 (E.D. Cal. Dec. 26, 2012) (citations omitted) (remanding unlawful detainer action

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sua sponte). Defendants fail to establish a basis for federal question jurisdiction.

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The court finds that defendant has not shown any proper basis for removal. Thus,

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the court lacks subject matter jurisdiction, the case shall be remanded and defendants’ motion for

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in forma pauperis status is moot.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. This action is REMANDED to San Joaquin County Superior Court.

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2. The motion for in forma pauperis status is DENIED as moot.

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DATED: October 31, 2016.

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UNITED STATES DISTRICT JUDGE

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