Cowan et al v. Lopez

Filing 7

ORDER REMANDING ACTION. Signed by Judge Saundra Brown Armstrong on 10/17/16. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 10/17/2016)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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7 JOHN COWAN,

Plaintiff,

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Case No: C 16-5864 SBA
ORDER REMANDING ACTION

vs.

10 DANIEL LOPEZ; et al.,

Defendants.

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Acting pro se, Defendant Daniel Lopez (“Lopez”) removed two consolidated civil

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actions originally filed in San Francisco County Superior Court on the basis of federal

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question jurisdiction, pursuant to 28 U.S.C. § 1441. See John Cowan v. Daniel Lopez, S.F.

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Super. Ct. No. CGC-13-531107 (“Cowan action”) and Timothy Broderick v. Daniel Lopez,

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S.F. Super. Ct. No. CGC-13-546196 (“Broderick action”). Lopez argues that the removed

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actions implicate “49 U.S.C. §§ 40119 and 44901 and 49 C.F.R. § 1520.1ff dealing with

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protection of Sensitive Security Information [“SSI”] at airports—over which this Court has

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original jurisdiction.” Not. of Removal at 2, Dkt. 1. Along with his Notice of Removal,

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Lopez has submitted a motion for leave to proceed in forma pauperis (“IFP”). For the

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reasons set forth below, the Court sua sponte remands the consolidated actions for lack of

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jurisdiction. See 28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3).1

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On October 14, 2016, Plaintiffs filed a motion to remand along with a request for
an order shortening time. Dkt. 4, 5. Because the court remands the action sua sponte, those
28 motions are denied as moot.
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I.

BACKGROUND
Lopez was previously a client of attorney John Cowan (“Cowan”), who represented

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Lopez in a business partnership dispute filed in the San Francisco County Superior Court.

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As a result of a fee dispute between Cowan and Lopez, Lopez allegedly began harassing

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and defaming Cowan. Represented by attorney Timothy Broderick of the Broderick Saleen

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Law Firm (collectively “the Broderick Firm”), Cowan filed suit against Lopez, alleging

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state law causes of action for defamation, willful misconduct under California Penal Code

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§§ 523 and 524, negligence, and injunctive relief.

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Lopez, apparently displeased that the Broderick Firm was representing Cowan, then

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turned his attention to the Broderick Firm. According to the Broderick Firm, Lopez began

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posing as former clients of the firm and posting false and defamatory reviews on numerous

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internet sites, such as Avvo, Yelp, Google and Craigslist, among others. The Broderick

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Firm commenced a separate lawsuit against Lopez, alleging state law causes of action for

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defamation, intentional and negligent interference with contractual relations, intentional

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and negligent infliction of emotional distress, unauthorized access, and declaratory and

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injunctive relief.

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During the course of the litigation, the Broderick Firm sought discovery from Lopez,

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including information stored in his cellular telephone. Lopez refused to provide such

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information, claiming that because he had a security clearance at the San Francisco Airport

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and used his telephone for work, the information stored in his telephone was federally

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protected as SSI.2 The trial court rejected Lopez’s contention and granted the Broderick

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Firm’s motion to compel. See Not. of Removal, Ex. G at 142-43. Lopez sought to

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challenge that ruling by filing a petition for writ of mandate, prohibition or other relief and

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SSI is “‘information obtained or developed in the conduct of security activities . . .
the disclosure of which TSA has determined would . . . [b]e detrimental to the security of
26 transportation.” Ibrahim v. Department of Homeland Sec., 669 F.3d 983, 998 (9th Cir.
2012) (quoting 49 C.F.R. § 1520.5(a)(4)). “[Under] [s]ection 525(a) of the Department of
27 Homeland Security Appropriations Act of 2007, Pub. L. No. 109-295, 120 Stat. 1355, 1382
(October 4, 2006), . . . information designated as SSI may be withheld from public
28 disclosure by the Department of Homeland Security.” Id.
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a request for stay with the California Court of Appeal. Id. Ex. H. On September 29, 2016,

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the Court of Appeal denied all of Lopez’s requests. Id. On October 11, 2016, Lopez filed

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the instant notice of removal.

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II.

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DISCUSSION
A district court has “a duty to establish subject matter jurisdiction over the removed

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action sua sponte, whether the parties raised the issue or not.” United Investors Life Ins.

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Co. v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). The federal removal

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statute permits the removal of an action which could have been brought originally in federal

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court. See 28 U.S.C. § 1441(a). “The burden of establishing federal jurisdiction is on the

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party seeking removal, and the removal statute is strictly construed against removal

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jurisdiction.” Prize Frize Inc. v. Matrix Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). A

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district court must remand a case to state court “if at any time before the final judgment it

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appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c);

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Kelton Arms Condominium Owners Ass’n v. Homestead Ins. Co., 346 F.3d 1190, 1192

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(9th Cir. 2003) (“[W]e have held that the district court must remand if it lacks jurisdiction”)

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(citing Sparta Surgical Corp. v. Nat’l Ass’n Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th

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Cir. 1998)).

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Under 28 U.S.C. § 1331, district courts “have original jurisdiction of all civil actions

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arising under the Constitution, laws, or treaties of the United States.” A district court’s

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federal-question jurisdiction extends over “only those cases in which a well-pleaded

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complaint establishes either that federal law creates the cause of action or that the plaintiff’s

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right to relief necessarily depends on resolution of a substantial question of federal law.”

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Franchise Tax Bd. of Calif. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983).

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The “presence or absence of federal-question jurisdiction is governed by the well-pleaded

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complaint rule, which provides that federal jurisdiction exists only when a federal question

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is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v.

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Williams, 482 U.S. 386, 392 (1987) (internal quotations and citations omitted).

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Lopez’s removal is premised entirely on his assertion that information stored on his

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cell phone constitutes SSI, which is protected from disclosure under federal law. To

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establish federal jurisdiction, Lopez must show that the pleadings allege claims that “arise

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under” federal law. Franchise Tax Bd., 463 U.S. at 27-28. A claim satisfies that

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requirement only if the “complaint establishes that (1) federal law creates the cause of

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action,” which is not the case here, or if “(2) the plaintiff’s right to relief necessarily

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depends on resolution of a substantial question of federal law.” Id. Whether a claim

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“necessarily depends” on a question of federal law turns on whether the complaint contains

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“allegations of federal law that are essential to the establishment of the claim,” Lippit v.

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Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1041 (9th Cir. 2003), or when “the

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vindication of a right under state law necessarily turn[s] on some construction of federal

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law.” Franchise Tax Bd., 463 U.S. at 9. “‘Arising under’ federal jurisdiction only arises,

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then, when the federal law does more than just shape a court’s interpretation of state law;

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the federal law must be at issue.” Int’l Union of Operating Engineers v. Cty. of Plumas,

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559 F.3d 1041, 1045 (9th Cir. 2009). Here, none of the claims alleged in either the Cowan

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or Broderick actions present any federal claims or issues arising under federal law. Rather,

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Lopez merely asserted—unsuccessfully—a federal privilege in response to a discovery

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request. Such an assertion is plainly insufficient to demonstrate the existence of federal

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jurisdiction.

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III.

CONCLUSION

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For the reasons stated above,

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IT IS HEREBY ORDERED THAT, pursuant to 28 U.S.C. § 1447(c), the instant

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matter is REMANDED to the San Francisco County Superior Court. Lopez’s request to

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proceed IFP is DENIED AS MOOT. The Clerk shall terminate all pending matters and

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close the file.

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IT IS SO ORDERED.
Dated: 10/14/16

______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge

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