Garcia v. Barragan et al

Filing 7

ORDER FOR REASSIGNMENT; REPORT AND RECOMMENDATIONS re 1 Notice of Removal & 2 MOTION for Leave to Proceed in forma pauperis filed by Salvador Barragan. Objections due by 3/23/2018. Signed by Judge Maria-Elena James on 3/9/2018. (mejlc2S, COURT STAFF) (Filed on 3/9/2018) (Additional attachment(s) added on 3/9/2018: # 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 EDUARDO GARCIA, Case No. 18-cv-01451-MEJ Plaintiff, 8 ORDER FOR CLERK OF COURT TO REASSIGN CASE v. 9 10 SALVADOR BARRAGAN, et al., REPORT & RECOMMENDATION Defendants. United States District Court Northern District of California 11 12 INTRODUCTION 13 On March 6, 2018, Defendants Salvador Barragan and Maria J. Barragan removed this 14 15 unlawful detainer action from Alameda County Superior Court. Notice of Removal, Dkt. No. 1. 16 Mr. Barragan also filed an Application to Proceed In Forma Pauperis (“IFP Application”). Appl., 17 Dkt. No. 2. As the parties have not consented to magistrate judge jurisdiction, the Court ORDERS 18 the Clerk of Court to reassign this case to a district judge with the recommendation that the case 19 be remanded to Alameda County Superior Court and Mr. Barragan‟s IFP Application be found as 20 moot. 21 22 LEGAL STANDARD Subject matter jurisdiction is fundamental and cannot be waived. Billingsley v. C.I.R., 868 23 F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those cases which the 24 Constitution and Congress authorize them to adjudicate, i.e., those involving diversity of 25 citizenship or a federal question, or those to which the United States is a party. Kokkonen v. 26 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Chen-Cheng Wang ex rel. 27 United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (federal courts have no power to 28 consider claims for which they lack subject-matter jurisdiction). Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the 1 district courts of the United States have original jurisdiction, may be removed by the defendant or 3 the defendants, to the district court of the United States for the district and division embracing the 4 place where such action is pending.” However, the removal statutes are construed restrictively so 5 as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 6 (1941); see also Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) 7 (“Where doubt regarding the right to removal exists, a case should be remanded to state court.”). 8 The burden of establishing federal jurisdiction for purposes of removal is on the party seeking 9 removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The district court must 10 remand the case if it appears before final judgment that the court lacks subject matter jurisdiction. 11 United States District Court Northern District of California 2 28 U.S.C. § 1447(c); Abada v. Charles Schwab & Co., 300 F.3d 1112, 1118 n.2 (9th Cir. 2002). Subject matter jurisdiction is determined from the face of the complaint. Rivet v. Regions 12 13 Bank of La., 522 U.S. 470, 475 (1998); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 14 (1987) (federal question must be presented on face of plaintiff‟s properly pleaded complaint); Fifty 15 Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90 (9th Cir. 1970) (existence of 16 diversity jurisdiction must be sufficient on the face of the complaint). Jurisdiction may not be 17 based on a claim raised as a defense or a counterclaim. K2 Am. Corp. v. Roland Oil & Gas, LLC, 18 653 F.3d 1024, 1029 (9th Cir. 2011). DISCUSSION 19 20 The Complaint asserts only one state law claim for unlawful detainer and thus does not 21 provide any ground for removal.1 Notice of Removal at ECF pp. 3-8 (Compl.). “An unlawful 22 detainer action, on its face, does not arise under federal law but is purely a creature of California 23 law.” Snavely v. Johnson, 2015 WL 5242925, at *2 (N.D. Cal. Sept. 8, 2015) (citations omitted); 24 HSBC Bank USA N.A. v. Serrato, 2013 WL 3337813, at *2 (N.D. Cal. July 1, 2013). Defendants assert federal question jurisdiction exists under 28 U.S.C. § 1331, and that the 25 26 1 27 28 Defendants assert that “the summons and complaint have never been served to Defendant[]” but that “[a] [p]artial copy of the complaint was left with [the] summons[.]” Notice of Removal at ECF ¶ 1. It is unclear what, if anything, is missing from the attached Complaint and summons; however, the Complaint as provided asserts only a single unlawful detainer cause of action. 2 1 action may be removed to this Court because “it arises under [ ] derivative removal jurisdiction.” 2 Notice of Removal ¶ 2; see 28 U.S.C. § 1441(f) (“The court to which a civil action is removed 3 under this section is not precluded from hearing and determining any claim in such civil action 4 because the State court from which such civil action is removed did not have jurisdiction over that 5 claim.”). Defendants do not further explain the basis for their belief that derivative removal 6 jurisdiction exists here. In fact, derivative removal jurisdiction does not appear to provide a basis 7 for removal; as discussed above, the state court has jurisdiction over the unlawful detainer claim. 8 Accordingly, the Court RECOMMENDS the District Judge remand this action to the Alameda 9 County Superior Court. 10 United States District Court Northern District of California 11 APPLICATION TO PROCEED IN FORMA PAUPERIS A district court may authorize the commencement of a civil action in forma pauperis if it is 12 satisfied that the would-be plaintiff cannot pay the filing fees necessary to pursue the action. 28 13 U.S.C. § 1915(a)(1). The policy for allowing a party to proceed in forma pauperis is to protect 14 litigants from abandoning “what may be a meritorious claim in order to spare himself complete 15 destitution.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 340 (1948). 16 In order for a court to authorize the commencement of an action without the prepayment of 17 the filing fee, a person must submit an affidavit that includes a statement of all the assets the 18 person possesses. 28 U.S.C. § 1915(a)(1). An affidavit is sufficient “where it alleges that the 19 affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 20 787 F.3d 1226, 1234 (9th Cir. 2015) (quoting Adkins, 335 U.S. at 339). “[O]ne need not be 21 absolutely destitute to obtain benefits of the in forma pauperis statute.” Id. (internal quotation 22 marks omitted); see id. (“[T]here is no formula set forth by statute, regulation, or case law to 23 determine when someone is poor enough to earn IFP status.”). A party seeking in forma pauperis 24 status must nevertheless “allege poverty „with some particularity, definiteness and certainty.‟” Id. 25 (quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). 26 Only Mr. Barragan filed an IFP Application; Ms. Barragan does not seek IFP status. See 27 Docket. The Court will collect only one filing fee per case; if there are joined parties, each party 28 must apply and qualify for IFP status. Johnson v. U.S. Bureau of Prisons, 2008 WL 1885763, at 3 1 *1 (N.D. Cal. Apr. 25, 2008). While Mr. Barragan‟s Application demonstrates he is unable to pay 2 the Court‟s $400 filing fee, nothing in the present record allows the Court to find Ms. Barragan 3 also lacks funds to pay the filing fee.2 However, in light of the Court‟s recommendation that this case be remanded, the Court 4 5 further RECOMMENDS Mr. Barragan‟s IFP Application be found as moot. CONCLUSION 6 As jurisdiction appears to be lacking, the undersigned hereby RECOMMENDS that this 7 8 case be remanded to Alameda County Superior Court and that Mr. Barragan‟s IFP Application be 9 found as moot. 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 10 United States District Court Northern District of California 11 this report and recommendation within 14 days after being served with a copy. IT IS SO RECOMMENDED. 12 13 14 Dated: March 9, 2018 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 2 28 Although Mr. Barragan declares his spouse is not employed (Appl. at 2), nothing in Mr. Barragan‟s Application describes his spouse‟s assets or expenses. 4

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