H&H Property Management, LLC et al v. Taylor et al

Filing 11

ORDER remanding case. Signed by Judge Hamilton on 11/14/2013. (pjhlc2, COURT STAFF) (Filed on 11/14/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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H & H PROPERTY MANAGEMENT, LLC,
Plaintiff,

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v.

ORDER REMANDING CASE

TYRONE T. TAYLOR, et al.,

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For the Northern District of California

United States District Court

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No. C 13-5039 PJH

Defendants.
_______________________________/

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Defendants Tyrone Taylor and Novella Taylor (“defendants”) removed this case from

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the Superior Court of California, County of Alameda, on October 29, 2013. The court has

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reviewed the notice of removal and the state court complaint, and finds that the case must

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be remanded for lack of subject matter jurisdiction.

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Subject matter jurisdiction is fundamental and cannot be waived. Billingsly v. C.I.R.,

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

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the Constitution and Congress authorize them to adjudicate – those involving diversity of

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

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Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); see also Chen-

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Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992)

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(federal courts have no power to consider claims for which they lack subject-matter

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jurisdiction).

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A defendant may remove a civil action filed in state court if the action could have

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originally been filed in federal court. 28 U.S.C. § 1441. The removal statutes are

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construed restrictively, however, so as to limit removal jurisdiction. Shamrock Oil & Gas

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Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also Matheson v. Progressive Specialty

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Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).

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

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

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district court must remand the case if it appears before final judgment that the court lacks

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subject matter jurisdiction. 28 U.S.C. § 1447(c); Albingia Versicherungs A.G. v. Schenker

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Int’l, Inc., 344 F.3d 931, 936 (9th Cir. 2003).

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Subject matter jurisdiction is determined from the face of the complaint. Toumajian

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v. Frailey, 135 F.3d 648, 653 n.2 (9th Cir. 1998) (“[f]or removal to be appropriate, a federal

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question must appear on the face of the complaint”); see also Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987) (federal question must be presented on face of plaintiff’s properly

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For the Northern District of California

United States District Court

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pleaded complaint); Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90

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(9th Cir. 1970) (existence of diversity jurisdiction must be sufficient on the face of the

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complaint). Jurisdiction may not be based on a claim raised as a defense or a

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counterclaim. K2 America Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th Cir.

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2011).

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The complaint at issue was filed in Alameda County Superior Court by plaintiff H&H

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Property Management, LLC. The complaint alleges a single cause of action under state

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law for unlawful detainer. Defendants filed a notice of removal on October 29, 2013, and

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on the same day, filed cross-claims against Conneen Hooks, Dale Hooks, Tambra Duron,

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East Oakland Community Project, Oakland Housing Authority, and the City of Oakland.

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See Dkts. 1, 5. The notice of removal appears to allege that this court has federal question

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jurisdiction and supplemental jurisdiction over the complaint by virtue of the asserted cross-

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claims, which make reference to alleged violations of the federal Fair Housing Act. The

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notice of removal also contains a heading entitled “diversity of jurisdiction,” though it makes

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no mention of the citizenship of the parties or the amount in controversy.

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The notice of removal alleges no facts from which the court can find that it has
subject matter jurisdiction over the complaint. First, even if the cross-complaint clearly

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jurisdiction is determined from the face of the original complaint, which alleges only one

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cause of action under state law. See, e.g., Toumajian v. Frailey, 135 F.3d 648, 653 n.2

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(9th Cir. 1998). The court does not consider counter-claims or cross-claims in determining

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subject matter jurisdiction. K2 America Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024,

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1029 (9th Cir. 2011); Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 327

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(5th Cir. 1998) (finding that “defendant's third-party claim alleging a federal question does

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not come within the purview of § 1441 removability”); see also Redevelopment Agency of

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City of San Bernadino v. Alvarez, 288 F.Supp.2d 1112, 1115 (C.D. Cal. 2003) (citing Metro

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Ford and holding that removal “cannot be based on a counterclaim or cross-claim raising a

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For the Northern District of California

alleged causes of action based on federal law (i.e., the Fair Housing Act), removal

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United States District Court

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federal question”). Thus, as the complaint alleges only a single claim under state law, the

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court finds that there is no federal question jurisdiction. Defendants’ arguments regarding

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supplemental jurisdiction appear to be similarly based on the presence of federal cross-

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claims. Thus, because the court does not consider cross-claims when determining removal

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jurisdiction, the court also finds that there is no supplemental jurisdiction.

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Next, while defendants do make reference to “diversity of jurisdiction,” they allege no

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facts to support such a basis for subject matter jurisdiction. The notice of removal makes

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no statement regarding the citizenship of the parties or the amount in controversy. Thus,

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the court finds that there is no diversity jurisdiction over the case.

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Accordingly, as the court lacks subject matter jurisdiction, the action is hereby

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REMANDED to the Alameda County Superior Court. Because the court lacks subject

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matter jurisdiction, it does not reach the merits of defendants’ “application for emergency

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stay of execution” (which the court construes as a request for temporary restraining order).

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Finally, defendants’ requests to proceed in forma pauperis are GRANTED, and

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defendants will not be required to pay the filing fee. However, because the case is

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remanded, this court does not order the U.S. Marshal to serve the complaint, or any other

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papers, on the plaintiff or cross-defendants.

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IT IS SO ORDERED.
Dated: November 14, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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