Trinity Management Services v. Kuloshvili et al

Filing 6

ORDER granting 3 MOTION for Leave to Proceed in forma pauperis. ORDER FOR CLERK OF COURT TO REASSIGN UNLAWFUL DETAINER CASE WITH RECOMMENDATION FOR REMAND TO SAN FRANCISCO COUNTY SUPERIOR COURT. Objections due by 6/5/2017. Signed by Judge Maria-Elena James on 5/22/2017. (mejlc2S, COURT STAFF) (Filed on 5/22/2017) (Additional attachment(s) added on 5/22/2017: # 1 Certificate/Proof of Service) (rmm2S, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TRINITY MANAGEMENT SERVICES, Case No. 17-cv-02863-MEJ Plaintiff, 8 ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; ORDER FOR CLERK OF COURT TO REASSIGN CASE v. 9 10 BEKA KULOSHVILI, et al., Defendants. United States District Court Northern District of California 11 REPORT & RECOMMENDATION 12 13 14 INTRODUCTION On May 18, 2017, Defendant Beka Kuloshvili removed this unlawful detainer action from 15 San Francisco County Superior Court. Kuloshvili also filed an Application to Proceed In Forma 16 Pauperis. Appl., Dkt. No. 3. A district court may authorize the start of a civil action in forma 17 pauperis if the court is satisfied that the would-be plaintiff cannot pay the filling fees required to 18 pursue the lawsuit. See 28 U.S.C. § 1915(a)(1). Kuloshvili submitted the required documentation 19 demonstrating she is unable to pay the costs of this action, and it is evident from the Application 20 that her assets and income are insufficient to enable her to pay the fees. See Appl. Accordingly, 21 the Court GRANTS Kuloshvili’s Application to Proceed In Forma Pauperis. 22 However, as it appears that jurisdiction is lacking, this case should be remanded to state 23 court. As Kuloshvili did not yet consent to magistrate judge jurisdiction, the Court ORDERS the 24 Clerk of Court to reassign this case to a district judge with the recommendation that the case be 25 remanded to San Francisco County Superior Court. 26 27 28 LEGAL STANDARD Subject matter jurisdiction is fundamental and cannot be waived. Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those cases which the 1 Constitution and Congress authorize them to adjudicate, i.e., those involving diversity of 2 citizenship or a federal question, or those to which the United States is a party. Kokkonen v. 3 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Chen-Cheng Wang ex rel. 4 United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (federal courts have no power to 5 consider claims for which they lack subject-matter jurisdiction). 6 Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the 7 district courts of the United States have original jurisdiction, may be removed by the defendant or 8 the defendants, to the district court of the United States for the district and division embracing the 9 place where such action is pending.” However, the removal statutes are construed restrictively so as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 11 United States District Court Northern District of California 10 (1941); see also Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) 12 (“Where doubt regarding the right to removal exists, a case should be remanded to state court.”). 13 The burden of establishing federal jurisdiction for purposes of removal is on the party seeking 14 removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The district court must 15 remand the case if it appears before final judgment that the court lacks subject matter jurisdiction. 16 28 U.S.C. § 1447(c); Abada v. Charles Schwab & Co., 300 F.3d 1112, 1118 n.2 (9th Cir. 2002). 17 Subject matter jurisdiction is determined from the face of the complaint. Rivet v. Regions 18 Bank of La., 522 U.S. 470, 475 (1998); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 19 (1987) (federal question must be presented on face of plaintiff’s properly pleaded complaint); Fifty 20 Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90 (9th Cir. 1970) (existence of 21 diversity jurisdiction must be sufficient on the face of the complaint). Jurisdiction may not be 22 based on a claim raised as a defense or a counterclaim. K2 Am. Corp. v. Roland Oil & Gas, LLC, 23 653 F.3d 1024, 1029 (9th Cir. 2011). 24 25 DISCUSSION The face of the complaint, which asserts only one state law claim for unlawful detainer, 26 does not provide any ground for removal. “An unlawful detainer action, on its face, does not arise 27 under federal law but is purely a creature of California law.” Snavely v. Johnson, 2015 WL 28 5242925, at *2 (N.D. Cal. Sept. 8, 2015) (citations omitted); HSBC Bank USA N.A. v. Serrato, 2 1 2013 WL 3337813, at *2 (N.D. Cal. July 1, 2013). 2 Kuloshvili asserts the Court has jurisdiction under 28 U.S.C. § 1441(a) and/or (b). Notice 3 of Removal ¶ 5. But where diversity is cited as a basis for jurisdiction, “removal is not permitted 4 if a defendant in the case is a citizen of the state in which the plaintiff originally brought the 5 action, even if the opposing parties are diverse.” Snavely, 2015 WL 5242925, at *2 (citing 28 6 U.S.C. § 1441(b); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (requiring complete 7 diversity between all plaintiffs and all defendants). Moreover, district courts have original 8 jurisdiction over diversity cases only where the amount in controversy, exclusive of interest and 9 costs, exceeds $75,000. 28 U.S.C. § 1332(a). Pursuant to California Code of Civil Procedure section 86(a)(4), an unlawful detainer is a limited civil action where the “whole amount of 11 United States District Court Northern District of California 10 damages claimed” must be “twenty-five thousand dollars ($25,000) or less.” “[T]he amount of 12 damages sought in the complaint, not the value of the subject real property, determines the amount 13 in controversy.” Snavely, 2015 WL 5242925, at *2. Thus, “even where an unlawful detainer 14 action involves foreclosure on a mortgage that exceeds $75,000, the amount of the mortgage does 15 not satisfy the amount in controversy requirement.” Id. (citing Deutsche Bank Nat’l Tr. v. 16 Heredia, 2012 WL 4747157, at *2 (N.D. Cal. Oct. 3, 2012) (holding that the amount in 17 controversy requirement was not met even where the mortgage was valued at over $75,000)). 18 Kuloshvili also asserts federal question jurisdiction exists pursuant to 28 U.S.C. § 1331 19 because her answer relies on a federal statute. However, an anticipated federal defense or 20 counterclaim is not sufficient to confer jurisdiction. See Holmes Grp. v. Vornado Air Circulation 21 Sys., Inc., 535 U.S. 826, 831 (2002); Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr., 22 463 U.S. 1, 10 (1983). “A case may not be removed to federal court on the basis of a federal 23 defense, . . . even if the defense is anticipated in the plaintiff’s complaint.” ARCO Envtl. 24 Remediation, LLC v. Dep’t of Health & Envtl. Quality of the State of Mont., 213 F.3d 1108, 1113 25 (9th Cir. 2000) (quotation omitted); see also Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th 26 Cir. 2005) (“A federal law defense to a state-law claim does not confer jurisdiction on a federal 27 court, even if the defense is that of federal preemption and is anticipated in the plaintiff’s 28 complaint.” (citation omitted)). Thus, any anticipated defense is not a valid ground for removal. 3 1 See, e.g., Nguyen v. Bui, 2012 WL 762156, at *2 (N.D. Cal. Feb. 21, 2012) (holding that 2 affirmative defenses based upon Federal Truth in Lending Act and Real Estate Settlement 3 Procedures Act do not confer federal jurisdiction upon state unlawful detainer claim); Aurora 4 Loan Serv., LLC v. Martinez, 2010 WL 1266887, at * 1 (N.D. Cal. Mar. 29, 2010) (answer 5 asserting plaintiff violated the Protecting Tenants at Foreclosure Act does not confer federal 6 jurisdiction over unlawful detainer claim).1 CONCLUSION 7 As jurisdiction appears to be lacking, the undersigned hereby RECOMMENDS that this 8 9 10 case be remanded to San Francisco County Superior Court. The Clerk of Court shall reassign this case to a district court judge. Pursuant to Federal Rule of Civil Procedure 72, any party may serve and file objections to United States District Court Northern District of California 11 12 this report and recommendation within 14 days after being served with a copy. IT IS SO ORDERED AND RECOMMENDED. 13 14 15 Dated: May 22, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 1 In addition, the Notice of Removal does not indicate that Defendants Giorgi Roinishvili and Goga Kemertelidze join in the removal. See Notice of Removal. “All defendants who have been properly served in the action must join a petition for removal.” Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011) (internal quotation marks and ellipses omitted). As Kuloshvili, Roinishvili, and Kemertelidze filed an answer (Notice of Removal at ECF pp.10-12), all three Defendants must consent to the removal. Allowing Kuloshvili an opportunity to cure this defect, see Destfino, 630 F.3d at 956, would be futile, as subject matter jurisdiction is lacking. 4

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