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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EDUARDO GARCIA,

Case No. 18-cv-01451-MEJ

Plaintiff,
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ORDER FOR CLERK OF COURT TO
REASSIGN CASE

v.
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SALVADOR BARRAGAN, et al.,

REPORT & RECOMMENDATION

Defendants.

United States District Court
Northern District of California

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INTRODUCTION

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On March 6, 2018, Defendants Salvador Barragan and Maria J. Barragan removed this

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unlawful detainer action from Alameda County Superior Court. Notice of Removal, Dkt. No. 1.

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Mr. Barragan also filed an Application to Proceed In Forma Pauperis (“IFP Application”). Appl.,

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Dkt. No. 2. As the parties have not consented to magistrate judge jurisdiction, the Court ORDERS

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the Clerk of Court to reassign this case to a district judge with the recommendation that the case

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be remanded to Alameda County Superior Court and Mr. Barragan‟s IFP Application be found as

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moot.

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LEGAL STANDARD
Subject matter jurisdiction is fundamental and cannot be waived. Billingsley v. C.I.R., 868

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F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those cases which the

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Constitution and Congress authorize them to adjudicate, i.e., those involving diversity of

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citizenship or a federal question, or those to which the United States is a party. Kokkonen v.

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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Chen-Cheng Wang ex rel.

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United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (federal courts have no power to

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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

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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.” However, the removal statutes are construed restrictively so

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as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09

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(1941); see also Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)

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(“Where doubt regarding the right to removal exists, a case should be remanded to state court.”).

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The burden of establishing federal jurisdiction for purposes of removal is on the party seeking

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removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The district court must

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remand the case if it appears before final judgment that the court lacks subject matter jurisdiction.

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United States District Court
Northern District of California

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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

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Bank of La., 522 U.S. 470, 475 (1998); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392

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(1987) (federal question must be presented on face of plaintiff‟s properly pleaded complaint); Fifty

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Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90 (9th Cir. 1970) (existence of

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diversity jurisdiction must be sufficient on the face of the complaint). Jurisdiction may not be

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based on a claim raised as a defense or a counterclaim. K2 Am. Corp. v. Roland Oil & Gas, LLC,

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653 F.3d 1024, 1029 (9th Cir. 2011).
DISCUSSION

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The Complaint asserts only one state law claim for unlawful detainer and thus does not

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provide any ground for removal.1 Notice of Removal at ECF pp. 3-8 (Compl.). “An unlawful

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detainer action, on its face, does not arise under federal law but is purely a creature of California

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law.” Snavely v. Johnson, 2015 WL 5242925, at *2 (N.D. Cal. Sept. 8, 2015) (citations omitted);

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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

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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.
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action may be removed to this Court because “it arises under [ ] derivative removal jurisdiction.”

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Notice of Removal ¶ 2; see 28 U.S.C. § 1441(f) (“The court to which a civil action is removed

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under this section is not precluded from hearing and determining any claim in such civil action

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because the State court from which such civil action is removed did not have jurisdiction over that

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claim.”). Defendants do not further explain the basis for their belief that derivative removal

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jurisdiction exists here. In fact, derivative removal jurisdiction does not appear to provide a basis

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for removal; as discussed above, the state court has jurisdiction over the unlawful detainer claim.

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Accordingly, the Court RECOMMENDS the District Judge remand this action to the Alameda

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County Superior Court.

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United States District Court
Northern District of California

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APPLICATION TO PROCEED IN FORMA PAUPERIS
A district court may authorize the commencement of a civil action in forma pauperis if it is

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satisfied that the would-be plaintiff cannot pay the filing fees necessary to pursue the action. 28

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U.S.C. § 1915(a)(1). The policy for allowing a party to proceed in forma pauperis is to protect

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litigants from abandoning “what may be a meritorious claim in order to spare himself complete

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destitution.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 340 (1948).

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In order for a court to authorize the commencement of an action without the prepayment of

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the filing fee, a person must submit an affidavit that includes a statement of all the assets the

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person possesses. 28 U.S.C. § 1915(a)(1). An affidavit is sufficient “where it alleges that the

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affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees,

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787 F.3d 1226, 1234 (9th Cir. 2015) (quoting Adkins, 335 U.S. at 339). “[O]ne need not be

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absolutely destitute to obtain benefits of the in forma pauperis statute.” Id. (internal quotation

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marks omitted); see id. (“[T]here is no formula set forth by statute, regulation, or case law to

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determine when someone is poor enough to earn IFP status.”). A party seeking in forma pauperis

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status must nevertheless “allege poverty „with some particularity, definiteness and certainty.‟” Id.

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(quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)).

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Only Mr. Barragan filed an IFP Application; Ms. Barragan does not seek IFP status. See

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Docket. The Court will collect only one filing fee per case; if there are joined parties, each party

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must apply and qualify for IFP status. Johnson v. U.S. Bureau of Prisons, 2008 WL 1885763, at
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*1 (N.D. Cal. Apr. 25, 2008). While Mr. Barragan‟s Application demonstrates he is unable to pay

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the Court‟s $400 filing fee, nothing in the present record allows the Court to find Ms. Barragan

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also lacks funds to pay the filing fee.2
However, in light of the Court‟s recommendation that this case be remanded, the Court

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further RECOMMENDS Mr. Barragan‟s IFP Application be found as moot.
CONCLUSION

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As jurisdiction appears to be lacking, the undersigned hereby RECOMMENDS that this

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case be remanded to Alameda County Superior Court and that Mr. Barragan‟s IFP Application be

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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

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United States District Court
Northern District of California

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this report and recommendation within 14 days after being served with a copy.
IT IS SO RECOMMENDED.

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Dated: March 9, 2018
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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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.
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