Abitsch & Abitsch, LLC v. Wanigatunga

Filing 11

ORDER REMANDING CASE., Motions terminated: 5 First MOTION to Shorten TimeFirst MOTION to Remand filed by Abitsch & Abitsch, LLC.. Signed by Judge Maria-Elena James on 10/7/2011. (cdnS, COURT STAFF) (Filed on 10/7/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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ABITSCH & ABITSCH LLC,
Plaintiff,

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No. C 11-4833 MEJ
ORDER REMANDING CASE

v.
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DARUKA WANIGATUNGA,
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Defendant.
_____________________________________/

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For the Northern District of California

UNITED STATES DISTRICT COURT

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This is an unlawful detainer action brought by Plaintiff Abitsch & Abitsch LLC (“Plaintiff”)

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in the Superior Court of the State of California, County of San Francisco. Not. of Removal, Ex. A,

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Dkt. No. 1. On September 30, 2011, Defendant Daruka Wanigatunga (“Defendant”) removed the

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case to this Court. Dkt. No. 1. On October 4, 2011, Plaintiff filed a motion to remand. Dkt. No. 5.

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Defendant has now filed an Opposition. Dkt. No. 10..

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Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the

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district courts of the United States have original jurisdiction, may be removed by the defendant or

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the defendants, to the district court of the United States for the district and division embracing the

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place where such action is pending.” Under 28 U.S.C. § 1332(a), a district court has original

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jurisdiction over civil actions where the suit is between citizens of different states and the amount in

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controversy, exclusive of interest and costs, exceeds $75,000.00. The burden of establishing that

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federal jurisdiction exists is on the party seeking removal, and courts strictly construe the removal

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statute against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992)

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(internal citations omitted). Accordingly, “federal jurisdiction must be rejected if there is any doubt

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as to the right of removal in the first instance.” Id. at 566. Further, a district court must remand the

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case to state court if it appears at any time before final judgment that the district court lacks subject

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matter jurisdiction. 28 U.S.C. § 1447(c). The Ninth Circuit strictly construes the removal statute

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against removal jurisdiction and federal jurisdiction must be rejected if there is any doubt as to the

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right of removal in the first instance. Gaus, 980 F.2d at 566. Moreover, the burden of overcoming

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the “strong presumption” against removal is always on the defendant. Id.

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Here, the face of the complaint, which asserts only one state law claim for unlawful detainer,

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does not provide any ground for removal. An unlawful detainer action, on its face, does not arise

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under federal law but is purely a creature of California law. Wells Fargo Bank v. Lapeen, 2011 WL

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2194117, at *3 (N.D. Cal. June 6, 2011); Wescom Credit Union v. Dudley, 2010 WL 4916578, at *2

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(C.D. Cal. Nov. 22, 2010). In its Notice of Removal, Defendant states that jurisdiction is proper

Practices Act. Not. of Removal at 3. However, federal jurisdiction “is determined (and must exist)

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For the Northern District of California

because Defendant intends to file a counterclaim for violation of the Federal Debt Collection

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UNITED STATES DISTRICT COURT

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as of the time the complaint is filed and removal is effected .” Strotek Corp. v. Air Transport Ass’n.

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of America, 300 F.3d 1129, 1133 (9th Cir. 2002). “The removal statute is strictly construed, and any

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doubt about the right of removal requires resolution in favor of remand.” Moore–Thomas v. Alaska

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Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566

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(9th Cir. 1992)). The presence or absence of federal question jurisdiction is governed by the

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“well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a federal

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question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v.

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Williams, 482 U.S. 386, 392 (1987). This rule makes the plaintiff the master of its complaint and

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permits its to avoid federal jurisdiction by relying exclusively on state law. Id. Ordinarily,

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therefore, federal question jurisdiction is determined from the face of the plaintiff’s complaint.

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Easton v. Crossland Mortg. Corp., 114 F.3d 979, 982 (9th Cir. 1997). Thus, as Plaintiff’s

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Complaint is one based solely on a state law unlawful detainer cause of action, Defendant’s yet-to-

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be-filed counterclaim is irrelevant.

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Defendant also argues that removal is proper based on diversity jurisdiction. Not. of

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Removal at 2; Opp’n at 1-2. However, in its motion, Plaintiff argues that diversity does not exist

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because it is a limited liability company and, although it is registered in Nevada, two of its four

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managers/managing members, Jeffrey Abitsch and his wife, Barbara Abitsch, reside in San Bruno,

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California; the other two managers/managing members, George Abitsch and Irene Abitsch, reside in

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Reno, Nevada. Mot. at 2. For diversity purposes, a limited liability company is a citizen of all states

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where any of its managers of managing members reside. Carden v. Arkoma Assoc., 494 U.S. 185,

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195-96 (1990); Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006).

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Thus, since two of Plaintiff’s managing members reside in San Bruno, California, it would appear

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that Plaintiff is properly found to reside in California for diversity purposes. Further, a limited

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liability company is found to exist in the state where its principal place of business is located. 28

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U.S.C. § 1332(c)(1); Hertz Co. v. Friend, et al., 130 S.Ct. 1181, 1192-93 (2010). Plaintiff states that

located at 698 Indiana Street, San Francisco (which is the property occupied by Defendant for which

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For the Northern District of California

its sole business activity is the ownership and management of the commercial/industrial property

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UNITED STATES DISTRICT COURT

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possession is sought in the instant unlawful detainer action). Mot. at 3. Thus, diversity jurisdiction

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appears to be lacking, and Defendant has failed to overcome the strong presumption against

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removal.

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Based on this analysis, the Court hereby REMANDS this case to San Francisco County
Superior Court.
IT IS SO RECOMMENDED.

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Dated: October 7, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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