Rubin v. Cannon

Filing 4

Order granting #2 application to proceed in forma pauperis; ORDER TO SHOW CAUSE why case should not be remanded sua sponte to state court. Response due May 31, 2022. Signed by Chief Magistrate Judge Joseph C. Spero on May 9, 2022. (jcslc2, COURT STAFF) (Filed on 5/9/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)Copy mailed on 5/10/2022.Copy emailed to Tara Macomber, cnsl for Sarah Rubin. Modified on 5/10/2022 (klh, COURT STAFF).

Case 3:22-cv-02474-JCS Document 4 Filed 05/09/22 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SARAH RUBIN,
Plaintiff,

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v.
LADY BENJAMIN CANNON,
Defendants.

United States District Court
Northern District of California

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Case No. 22-cv-02474-JCS
ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS
ORDER TO SHOW CAUSE WHY
CASE SHOULD NOT BE REMANDED
Re: Dkt. No. 2

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Defendant Lady Benjamin Cannon, pro se, removed this case from state court and moves

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to proceed in forma pauperis. Sufficient cause having been shown, Cannon’s application to

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proceed in forma pauperis (dkt. 2) is GRANTED.

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Federal courts have limited subject matter jurisdiction and may only hear cases falling

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within their jurisdiction. Generally, a defendant may remove a civil action filed in state court if

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the action could have been filed originally in federal court. 28 U.S.C. § 1441. The removal

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statutes are construed restrictively so as to limit removal jurisdiction. Shamrock Oil & Gas Corp.

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v. Sheets, 313 U.S. 100, 108−09 (1941). The Ninth Circuit recognizes a “strong presumption

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against removal.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal quotation marks

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omitted). Any doubts as to removability should be resolved in favor of remand. Matheson v.

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Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). The defendant bears the

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burden of showing that removal is proper. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th

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Cir. 2004). A district court may remand a case to state court sua sponte if it determines that

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jurisdiction is lacking. 28 U.S.C. §1447(c); see Smith v. Mylan, Inc., 761 F.3d 1042, 1043 (9th

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Cir. 2014).

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To establish diversity jurisdiction under 28 U.S.C. § 1332(a), as Cannon asserts here, a

Case 3:22-cv-02474-JCS Document 4 Filed 05/09/22 Page 2 of 3

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removing defendant must show that there is complete diversity of the parties—i.e., no defendant is

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a citizen of the same state as any plaintiff—and that the amount in controversy exceeds $75,000.

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See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).1 “[A] defendant's notice of removal need

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include only a plausible allegation that the amount in controversy exceeds the jurisdictional

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threshold. Evidence establishing the amount is required by [28 U.S.C.] § 1446(c)(2)(B) only when

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the plaintiff contests, or the court questions, the defendant’s allegation.” Dart Cherokee Basin

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Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). “Conclusory allegations as to the amount

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in controversy are insufficient.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089,

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1090–91 (9th Cir. 2003).
Here, Cannon asserts that she and Plaintiff Sarah Rubin are citizens of different states—

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United States District Court
Northern District of California

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California for Cannon, and New York for Rubin—and that the amount in controversy exceeds

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$75,000. But her assertion regarding the amount in controversy does not rise to the level of

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plausibility. Her discussion of the issue reads as follows:

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Here, the Complaint states that the unit that was offered for occupancy
by Lady Benjamin to Plaintiff Rubin—is at issue. Exhibit 1,
Complaint _____. Plaintiff is seeking to invalidate the Settlement
Agreement by way of this lawsuit, but has not made any payment to
Lady Benjamin for the space. Thus, if Plaintiff prevails in her action
for demanding to be paid, the pecuniary result the judgment would
directly produce is the payment of space rent by Rubin for the period
of time she occupied the mentioned space.

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[page break2]

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the litigation at __. See e.g. Cohn v. Petsmart Inc., supra 281 F.3d at
840 (“A settlement letter is relevant evidence of the amount in
controversy if it appears to reflect a reasonable estimate of the
plaintiff’s claim.”)

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Removal is generally not available based on diversity jurisdiction where, as here, at least one
defendant is a citizen of the forum state, see 28 U.S.C. § 1441(b)(2), but that “forum defendant
rule is procedural [rather than jurisdictional], and therefore a violation of this rule is a waivable
defect in the removal process that cannot form the basis for a district court’s sua sponte remand
order.” Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 936 (9th Cir. 2006). Accordingly, while the
case would be subject to remand on that basis if Rubin were to assert it, it is incumbent on her to
do so if she objects to proceeding in this Court.
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It appears that a page might be missing from Cannon’s notice of removal, but it is not clear
because she has not included page numbers. This order cites the notice of removal using the page
numbers assigned by the Court’s ECF filing system.
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Case 3:22-cv-02474-JCS Document 4 Filed 05/09/22 Page 3 of 3

Accordingly, the amount in controversy in this action well exceeds
$75,000, exclusive of interest and costs.

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Notice of Removal (dkt. 1) at 4–5.
Cannon has not attached Rubin’s complaint to the notice of removal as required by 28

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U.S.C. § 1446(a). Nor has she included any allegations in her notice of removal from which the

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Court can discern the precise nature of Rubin’s claim, the value of the rental unit apparently at

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issue, or the terms of the settlement agreement that Rubin purportedly seeks to invalidate. The

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Court therefore has no way to determine whether the amount in controversy meets the threshold

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required by § 1332(a), and thus whether jurisdiction is proper.
Cannon is therefore ORDERED TO SHOW CAUSE why this case should not be

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remanded sua sponte for lack of subject matter jurisdiction. Cannon must file a response to this

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United States District Court
Northern District of California

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order no later than May 31, 2022 explaining why the amount in controversy exceeds $75,000, and

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attaching a copy of Rubin’s complaint and all other “process, pleadings, and orders served upon”

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Cannon in the state court action as required by § 1446(a). If she does not file a response by that

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date, or fails to provide sufficient justification of the amount in controversy, the case will be

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reassigned to a district judge with a recommendation for sua sponte remand to state court.

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Cannon is encouraged to contact the Federal Pro Bono Project’s Pro Se Help Desk for

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assistance as she continues to pursue this case. Lawyers at the Help Desk can provide basic

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assistance to parties representing themselves but cannot provide legal representation. Cannon may

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contact the Help Desk at [phone] or [e-mail] to schedule a telephonic

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appointment

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IT IS SO ORDERED.
Dated: May 9, 2022
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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