RPR Larkspur Owner, LLC v. Jones

Filing 5

Sua Sponte Order re Case Relation to 17-CV-214 RS, or in the Alternative, Order Reassigning Case to District Judge; Report and Recommendation to Grant IFP Application and Remand to Superior Court of California, County of Marin Signed by Magistrate Judge Donna M. Ryu on April 19, 2017. (dmrlc2, COURT STAFF) (Filed on 4/19/2017) (Additional attachment(s) added on 4/19/2017: # 1 Certificate/Proof of Service) (dtmS, COURT STAFF).

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RPR LARKSPUR OWNER, LLC, Case No. 17-cv-01553-DMR Plaintiff, 8 12 SUA SPONTE ORDER RE CASE RELATION TO 17-CV-00214 RS, OR IN THE ALTERNATIVE, ORDER REASSIGNING CASE TO DISTRICT JUDGE; REPORT AND RECOMMENDATION TO GRANT IFP APPLICATION AND REMAND TO SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN 13 Re: Dkt. Nos. 1, 2 v. 9 10 DONALD JONES, Defendant. United States District Court Northern District of California 11 14 This is Defendant Donald Jones’s second attempt to remove this case from the Superior 15 Court of California, County of Marin, where it is pending as a complaint for unlawful detainer 16 against Mr. Jones. 17 Mr. Jones unsuccessfully attempted to remove this case on January 17, 2017 on the basis 18 of federal question jurisdiction, 28 U.S.C. § 1331. See Notice of Removal [Docket No. 1] in RPR 19 Larkspur Owner, LLC v. Jones, Case No. 3:17-cv-00214-RS (“Jones I”). The Honorable Richard 20 Seeborg remanded the case to Marin County Superior Court on February 22, 2017. See Order 21 Adopting Report and Recommendation and Remanding Case (“Order adopting R&R”) [Docket 22 No. 11] in Jones I. 23 Mr. Jones removed the same case again on March 23, 2017, and also filed an application to 24 proceed in forma pauperis (“IFP”). See Notice of Removal [Docket No. 1] in RPR Larkspur 25 Owner, LLC v. Jones, Case No. 4:17-cv-01553 (“Jones II”); IFP Application [Docket No. 2]. As 26 with Jones I, the Notice of Removal in Jones II states one ground for removal: that the Complaint 27 presents a federal question such that the case could have originally been filed in this Court. 28 (Notice of Removal ¶¶ 4-7) [Docket No. 1]; see also Notice of Removal in Jones I [Docket No. 1]. The parties have not yet filed a declination or consent to the jurisdiction of a magistrate 1 2 judge pursuant to 28 U.S.C. § 636(c). Since Jones I and the instant action are likely related, the 3 undersigned hereby issues a sua sponte order referring this case to Judge Seeborg for a case- 4 relation determination. If Judge Seeborg determines that this case is not related to Jones I, then 5 the case should be reassigned to a district judge for final disposition. The undersigned also issues 6 this Report and Recommendation, with the recommendation that the IFP application be granted 7 and that summary remand be ordered. 8 I. IFP APPLICATION Having evaluated Mr. Jones’s financial affidavit, the undersigned finds that he has satisfied 9 the economic eligibility requirement of 28 U.S.C. § 1915(a) and therefore recommends that the 11 United States District Court Northern District of California 10 IFP application be granted. The undersigned next turns to the issue of subject matter jurisdiction. 12 II. 13 PROCEDURAL DEFECT IN REMOVAL Pursuant to 28 U.S.C. § 1441, “any civil action brought in a State court of which the 14 district courts of the United States have original jurisdiction, may be removed by the defendant or 15 other defendants, to the district court of the United States for the district and division embracing 16 the place where such action is pending.” 28 U.S.C. § 1441(a). “If the district court at any time 17 determines that it lacks jurisdiction over the removed action, it must remedy the improvident grant 18 of removal by remanding the action to state court.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 19 831, 838 (9th Cir.), opinion amended on denial of reh’g, 387 F.3d 966 (9th Cir. 2004) (citing 28 20 U.S.C. § 1447). “The removal statute is strictly construed against removal jurisdiction, and the 21 burden of establishing federal jurisdiction falls to the party invoking the statute.” Id. “A 22 defendant seeking to remove from state to federal court must file a notice of removal within thirty 23 days of receiving a copy of the initial pleading.” Destfino v. Reiswig, 630 F.3d 952, 954 (9th Cir. 24 2011) (citing 28 U.S.C. § 1446(b)). 25 Mr. Jones’s second notice of removal is untimely, as it was filed more 30 days after his 26 receipt of the initial complaint. See Deutsche Bank Nat. Trust Co. v. Baltazar, No. C 12-2281 27 PJH, 2012 WL 2159414, at *2 (N.D. Cal. June 13, 2012). While Mr. Jones does not state when he 28 received the initial complaint in his second Notice of Removal, the Marin County Superior Court’s 2 1 Register of Action shows that the state court ordered service of the complaint and summons by 2 posting and mailing on October 27, 2016, and Mr. Jones filed his demurrer on November 8, 2016. 3 See Register of Action for RPR Larkspur Owner, LLC v. Jones, Marin County Superior Court 4 Case No. CIV 1603823, available at 5 http://apps.marincounty.org/BeaconRoa/BeaconROAView.aspx?cvl_case_intrnl_no=195219 (last 6 accessed on April 19, 2017). Therefore, at the latest, Mr. Jones received the initial complaint at 7 the beginning of November 2016, and should have filed any notice of removal by the beginning of 8 December 2016. Mr. Jones did not do so until March 23, 2017. [Docket No. 1]. 9 III. FEDERAL QUESTION JURISDICTION In addition to the procedural defect discussed above, Mr. Jones also has failed to establish 11 United States District Court Northern District of California 10 federal subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and a “federal 12 court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively 13 appears.” Stock W., Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citations 14 omitted). “[T]he presence or absence of federal-question jurisdiction is governed by the ‘well- 15 pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal 16 question is presented on the face of the plaintiff's properly pleaded complaint.” Rivet v. Regions 17 Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 18 (1987)). That rule applies equally to evaluating the existence of federal questions in cases brought 19 initially in federal court and in removed cases. See Holmes Group, Inc. v. Vornado Air 20 Circulation Sys., Inc., 535 U.S. 826, 830 n.2 (2002). 21 A federal question exists only when it is presented by what is or should have been alleged 22 in the complaint. Id. at 830. The implication of a federal question through issues raised by an 23 answer or counterclaim does not suffice to establish federal question jurisdiction. Id. at 831; see 24 also ARCO Envtl. Remediation, LLC v. Dep't of Health & Envtl. Quality of Mont., 213 F.3d 1108, 25 1113 (9th Cir. 2000) (“[A] case may not be removed to federal court on the basis of a federal 26 defense, . . . even if the defense is anticipated in the plaintiff’s complaint, and even if both parties 27 admit that the defense is the only question truly at issue in the case.” (citation and internal 28 quotation marks omitted) (brackets in original)). 3 1 Here, Mr. Jones asserts that the basis for removal is federal question jurisdiction. (Notice 2 of Removal ¶ 4). He argues that a federal question arises out of his response to Plaintiff’s 3 unlawful detainer complaint. Mr. Jones contends that he withheld rental payments because 4 Plaintiff discriminated against him and his family on the basis of their physical disabilities in 5 violation of the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(A) (“FHA”). (Notice of Removal ¶ 5). 6 According to Mr. Jones, Plaintiff refused to make reasonable modifications to the property to 7 allow Defendant and his family full enjoyment of the property such as ensuring the doors were 8 sufficiently wide enough to permit passage of handicapped persons in wheelchairs; placing 9 environmental controls such as light switches, electrical outlets, and thermostats in accessible locations; permitting reinforcements in bathrooms to allow for the later installation of grab bars; 11 United States District Court Northern District of California 10 and providing usable kitchens and bathrooms such that a person in a wheelchair can maneuver in 12 the space, in violation of the FHA. (Notice of Removal ¶ 6(A) through (D)). 13 The complaint filed in Marin County Superior Court, however, simply alleges a state cause 14 of action under unlawful detainer. (Compl., I - X). “It is well established that unlawful detainer 15 claims do not arise under federal law and, without more, the court lacks federal-question 16 jurisdiction.” Deutsche Bank Nat'l Trust Co. v. Young, No. C-14-3170 EMC, 2014 WL 7336696, 17 at *3 (N.D. Cal. Dec. 23, 2014) (collecting cases). Whatever Mr. Jones intends to argue in 18 response to the unlawful detainer does not give rise to removal jurisdiction. See Holmes Group, 19 535 U.S. at 831; ARCO Envtl. Remediation, LLC, 213 F.3d at 1113; see also Deutsche Bank Nat'l 20 Trust Co., 2014 WL 7336696, at *4 (rejecting defendants’ arguments that federal question 21 jurisdiction exists based on violations of federal law including the FHA because “[d]efendants’ 22 arguments are federal defenses, and federal defenses do not confer jurisdiction” and remanding 23 action); Deutsche Bank Nat'l Trust Co. v. Yanez, No. ED-15-CV-02462-VAP-DTBx, 2016 WL 24 591752, at *1 (C.D. Cal. Feb. 11, 2016) (explaining that existence of a federal defense such as one 25 based on the FHA was an “insufficient basis to invoke federal question jurisdiction under 28 26 U.S.C. § 1331, and consequently [could not] support removal” of the action) (citing Caterpillar 27 Inc., 482 U.S. at 393). 28 4 1 IV. ATTORNEYS’ FEES Title 28 U.S.C. § 1447(c) provides that “[i]f at any time before final judgment it appears 2 that the district court lacks subject matter jurisdiction, the case shall be remanded. An order 3 remanding the case may require payment of just costs and any actual expenses, including attorney 4 fees, incurred as a result of the removal.” District courts have wide discretion in deciding to 5 award fees. Ervin v. Ballard Marine Constr., Inc., No. 16-CV-02931-WHO, 2016 WL 4239710, 6 at *4 (N.D. Cal. Aug. 11, 2016) (quoting Moore v. Permanente Med. Grp, Inc., 981 F.2d 443, 447 7 (9th Cir. 1992)). “Absent unusual circumstances, courts may award attorney’s fees under 8 § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking 9 10 United States District Court Northern District of California 11 12 removal. In determining whether a removing party lacked an “objectively reasonable basis” for removal, this court is mindful that “removal is not objectively unreasonable solely because the removing party’s arguments lack merit, or else attorney’s fees would always be awarded whenever remand is granted.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). In 13 Lussier, the Ninth Circuit explained that in determining whether removal was objectively 14 15 unreasonable, a court should determine “whether the relevant case law clearly foreclosed the defendant’s basis of removal,” taking into account “clarity of the law at the time of removal.” Id. 16 at 1066. 17 18 In Jones I, the magistrate judge found that Mr. Jones’s removal was “objectively unreasonable,” but nevertheless declined to award attorneys’ fees because Mr. Jones is indigent 19 and unrepresented, there was no indication of a pattern of improper delay, and there was no 20 21 22 23 24 indication that Plaintiff had incurred significant attorneys’ fees as a result of the improper removal. See Report and Recommendation (“R&R”) [Docket No. 6] at 3 in Jones I; Order on R&R in Jones I. However, the magistrate judge in Jones I “admonishe[d] [Mr.] Jones that further frivolous removals may result in sanctions.” See R&R at 3 in Jones I. Here, Mr. Jones’s removal on the basis of an anticipated federal defense under the FHA is 25 objectively unreasonable, for the reasons discussed herein. The court in Jones I already explained 26 that a “federal defense is not a basis for removal.” See R&R at 2 in Jones I. In Jones I, Mr. Jones 27 asserted federal question jurisdiction existed on the basis of the Protecting Tenants at Foreclosure 28 5 1 Act (“PTFA”). Id. at 1-2. The court in Jones I remanded the case, explaining that “PTFA does 2 not rise to a right of removal in lawful detainer actions because it provides at most a federal 3 defense, and a federal defense is not a basis for removal.” See R&R at 2 in Jones I. Even so, the undersigned declines to recommend awarding attorneys’ fees at this time. 4 5 Mr. Jones remains indigent and unrepresented. Additionally, it does not appear that Plaintiff has 6 spent any significant attorneys’ fees as a result of Mr. Jones’s second improper removal. The 7 undersigned, however, warns Mr. Jones that should he attempt to remove this action for a third 8 time, it may well be proper to award sanctions against him, and consider whether he should be 9 deemed a vexatious litigant. 10 CONCLUSION For the reasons stated above, the undersigned issues a sua sponte order referring this case 12 to Judge Seeborg for case-relation determination. If Judge Seeborg determines that the case is not 13 related to Jones I, the Clerk is directed to reassign this case to a district judge. The undersigned 14 also recommends that Mr. Jones’s IFP application be granted and that this action be remanded to 15 the Marin County Superior Court. 16 Any party may file objections to this report and recommendation with the district judge 17 within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a); 18 N.D. Cal. Civ. L.R. 72-2. S R NIA NO 23 ______________________________________ Donna M. Ryu yu United Donna M. R Judge States Magistrate RT ER H 24 Judge 25 26 27 28 6 FO 22 Dated: April 19, 2017 ERED ORD T IS SO I LI 21 IT IS SO ORDERED. A 20 S DISTRICT TE C TA RT U O 19 UNIT ED United States District Court Northern District of California 11 V. N D IS T IC T R OF C

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?