Gross Mortgage Corporation v. Al-Mansur

Filing 11

ORDER by Judge Edward M. Chen Granting 10 Plaintiff's Motion to Remand. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 3/11/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GROSS MORTGAGE CORPORATION,

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Plaintiff,

For the Northern District of California

United States District Court

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No. C-13-0398 EMC
ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

v.
SABIR AL-MANSUR an individual also
known as Ronald M. Poole,

(Docket Nos. 3, 10)

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Defendant.
___________________________________/

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Plaintiff Gross Mortgage Corporation (“GMC”) initiated an unlawful detainer action against

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Charles Brown in Alameda County Superior Court. In January 2013, Sabir Al-Mansur removed the

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case to federal court, asserting that has an interest in the real property at issue. Mr. Al-Mansur asks

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for leave to proceed in forma pauperis with respect to this lawsuit. Although GMC has not yet been

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formally served with a copy of the complaint in this action, it has filed a motion to remand, which is

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also currently pending.
Having considered the papers filed, as well as all other evidence of record,1 the Court finds

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both matters suitable for disposition without oral argument and VACATES the hearing set for April

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11, 2013. For the reasons discussed below, the Court GRANTS Mr. Al-Mansur’s motion to proceed

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in forma pauperis but also GRANTS GMC’s motion to remand.

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Mr. Al-Mansur failed to file a timely opposition to the motion to remand.

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I.
A.

DISCUSSION

Application to Proceed In Forma Pauperis

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When presented with an application to proceed in forma pauperis, a court must first

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determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See

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Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require an

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applicant to demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d

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853, 854 (10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331,

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339(1948)). Having reviewed Mr. Al-Mansur’s financial affidavit, the Court is satisfied that he has

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demonstrated that he meets the economic eligibility requirement and, accordingly, grants his
application to proceed in forma pauperis.

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For the Northern District of California

United States District Court

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Although the Court grants the application, it has a sua sponte obligation to ensure that it has

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subject matter jurisdiction over a case. See, e.g., Corporate Mgmt. Advisors, Inc. v. Artjen

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Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir. 2009) (stating that “[a] district court may remand a

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case sua sponte for lack of subject matter jurisdiction at any time”); Maniar v. Federal Deposit Ins.

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Corp., 979 F.2d 782, 784-85 (9th Cir. 1992) (noting that a district court has power to remand a case

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sua sponte when it lacks subject matter jurisdiction); Khan v. Bhutto, No. C-93-4165 MHP, 1993

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U.S. Dist. LEXIS 17678, at *1 (N.D. Cal. Dec. 6, 1993) (stating that “[a] court may deny in forma

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pauperis status under 28 U.S.C. § 1915(d) and dismiss sua sponte a claim . . . over which the court

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lacks subject matter jurisdiction”). Moreover, in its motion to remand, GMC argues that subject

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matter jurisdiction is lacking. For the reasons discussed below, the Court agrees with GMC that it

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does not have subject matter jurisdiction over the case, and therefore a remand to the state court is

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warranted.

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B.

Motion to Remand

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In his notice of removal,2 Mr. Al-Mansur claims that this Court has subject matter

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jurisdiction over the case based on diversity jurisdiction and federal question jurisdiction. Mr. Al-

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Mansur is incorrect as to both counts.

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The Court looks to the notice of removal because Mr. Al-Mansur failed to file an
opposition to the motion to remand.

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First, for diversity jurisdiction to obtain, “the matter in controversy exceed[] the sum or value

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of $ 75,000.” 28 U.S.C. § 1332(a). Mr. Al-Mansur has not made any showing that any damages

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sought by GMC would exceed that amount; in fact, the caption of the complaint (under the

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jurisdiction section) expressly states that GMC seeks damages not to exceed $10,000. The fact that

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the property at issue may be worth more than $75,000, see Docket No. 1 (Not. of Removal ¶ 6), is

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irrelevant. If GMC prevails in its action, Mr. Al-Mansur’s “liability will be measured by the fair

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rental value of the property for the time [he] unlawfully occupied it.”3 Bank United v. Peters, No. C

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11-1756 PJH, 2011 U.S. Dist. LEXIS 54884, at *4 (N.D. Cal. May 23, 2011) (also stating that “the

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amount in controversy is not the assessed value or the sales value of the property”).
Second, federal question jurisdiction depends on the contents of the plaintiff’s well-pleaded

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For the Northern District of California

United States District Court

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complaint and may not be predicated on the defendant’s counterclaims or defenses. See Holmes

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Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002); ARCO Envtl.

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Remediation, L.L.C. v. Department of Health & Envtl. Quality of St. of Mont., 213 F.3d 14 1108,

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1113 (9th Cir. 2000). Here, GMC’s well-pleaded complaint asserts a claim based on state law only,

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i.e., one for unlawful detainer. In his notice of removal, Mr. Al-Mansur claims that “federal

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questions are raised in [GMC’s] defective complaint,” Docket No. 1 (Not. of Removal at 7), but that

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is not correct. The alleged federal questions raised in the complaint are, in fact, defenses and/or

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counterclaims to the claim for unlawful detainer.

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Finally, to the extent Mr. Al-Mansur argues that he was entitled to remove pursuant to 28
U.S.C. § 1443, that argument is also without merit. Under § 1443,

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Any of the following civil actions or criminal prosecutions,
commenced in a State court may be removed by the defendant to the
district court of the United States for the district and division
embracing the place wherein it is pending:

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(1)
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Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the

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The Court notes that there may also be an independent bar to removal based on diversity
jurisdiction. Under federal law, where a removal is predicated on diversity jurisdiction, the case
“may not be removed if any of the parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). Accordingly, if Mr.
Brown or Mr. Al-Mansur is a citizen of California, removal by Mr. Al-Mansur would not be proper.

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equal civil rights of citizens of the United States, or of all
persons within the jurisdiction thereof . . . .

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28 U.S.C. § 1443(1).

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As the Ninth Circuit has noted,

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[a] petition for removal under § 1443(1) must satisfy the
two-part test articulated by the Supreme Court in Georgia v. Rachel,
384 U.S. 780 (1966), and City of Greenwood, Miss. v. Peacock, 384
U.S. 808 (1966). “First, the petitioners must assert, as a defense to the
prosecution, rights that are given to them by explicit statutory
enactment protecting equal racial civil rights.” “Second, petitioners
must assert that the state courts will not enforce that right, and that
allegation must be supported by reference to a state statute or a
constitutional provision that purports to command the state courts to
ignore the federal rights.”

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For the Northern District of California

United States District Court

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Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006) (emphasis added). As to the second

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prong, the Supreme Court has underscored that

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“the vindication of the defendant’s federal rights is left to the state
courts except in the rare situations where it can be clearly predicted by
reason of the operation of a pervasive and explicit state or federal law
that those rights will inevitably be denied by the very act of bringing
the defendant to trial in the state court.”

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Johnson v. Mississippi, 421 U.S. 213, 220 (1975).

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In the case at bar, Mr. Al-Mansur has failed to make the requisite showing for § 1443 to

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apply. Although he claims that he cannot enforce in state court “his right as [an] African American

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man,” Docket No. 1 (Not. of Removal ¶ 1), he has not supported that allegation with reference to a

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state statute or constitutional provision that purports to command the state courts to ignore his rights

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as an African American. Accordingly, removal under § 1443 was improper.

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II.

CONCLUSION

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For the foregoing reasons, the Court grants Mr. Al-Mansur’s application to proceed in forma

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pauperis but also grants GMC’s motion to remand. This Court lacks subject matter jurisdiction over

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the case. The case is therefore remanded to the Alameda County Superior Court.

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This order disposes of Docket Nos. 3 and 10.

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IT IS SO ORDERED.

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Dated: March 11, 2013
_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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