U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust v. Lukowski

Filing 16

ORDER TO SHOW CAUSE WHY 7 MOTION TO REMAND SHOULD NOT BE GRANTED AND DENYING 9 MOTION to Shorten Time. Signed by Judge Jeffrey S. White on 7/28/17. Show Cause Response due by 8/14/2017. (Attachments: # 1 Certificate/Proof of Service)(jjoS, COURT STAFF) (Filed on 7/28/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff, 9 10 United States District Court Northern District of California 11 12 v. SCOTT ALAN LUKOWSKI, Case No. 17-cv-03112-JSW ORDER TO SHOW CAUSE TO DEFENDANT WHY MOTION TO REMAND SHOULD NOT BE GRANTED AND DENYING ORDER TO SHORTEN TIME AS MOOT Re: Dkt. Nos. 7, 9 Defendant. 13 14 On May 31, 2017, Defendant removed this unlawful detainer action from Humboldt 15 County Superior Court, and he filed an application to proceed in forma pauperis. (Dkt. Nos. 1, 2.) 16 On June 29, 2017, Plaintiff filed a motion to remand, was scheduled for a hearing on August 8, 17 2017, and a motion asking that the Court hear the motion to remand on shortened time. Although 18 Plaintiff consented to proceed before Magistrate Judge Vadas, to whom the case initially was 19 assigned, Defendant did not file notice of consent. Accordingly, on July 25, 2017, the case was 20 reassigned to the undersigned Judge. 21 Plaintiff moves to remand the case to Humboldt County Superior Court on the basis that 22 the Court lacks subject matter jurisdiction. Under the Northern District Civil Local Rules, 23 Defendant’s opposition to the motion would have been due by no later than July 17, 2017. 24 Defendant has not filed an opposition to the motion to remand. 25 “[A]ny civil action brought in a State court of which the district courts of the United States 26 have original jurisdiction, may be removed by the defendant . . . to the district court of the United 27 States for the district and division embracing the place where such action is pending.” Franchise 28 Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 7-8 (1983) (citation omitted); see also 28 1 U.S.C. § 1441(a). However, federal courts are courts of limited jurisdiction. See, e.g., Kokkonen 2 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, the burden of 3 establishing federal jurisdiction for purposes of removal is on the party seeking removal, and the 4 removal statute is strictly construed against removal jurisdiction. Valdez v. Allstate Ins. Co., 372 5 F.3d 1115, 1117 (9th Cir. 2004); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 6 “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first 7 instance.” Gaus, 980 F.2d at 566. “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded 8 9 complaint rule.’” Caterpillar Inc. v. Williams, 482 U.S. 382, 392 (1987). The well-pleaded complaint rule recognizes that the plaintiff is the master of his or her claim. “[H]e or she may 11 United States District Court Northern District of California 10 avoid federal jurisdiction by exclusive reliance on state law.” Id. Thus, under the well-pleaded 12 complaint rule, federal-question jurisdiction arises where the “complaint establishes either that 13 federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on 14 resolution of a substantial question of federal law.” Franchise Tax Bd., 463 U.S. at 27-28. It appears that Defendant is a resident of California, which would preclude removal under 15 16 28 U.S.C. section 1441(b)(2). In addition, this action is an unlawful detainer action and, thus, 17 federal law does not create the cause of action. Moreover, notwithstanding the assertions in 18 Defendant’s notice of removal, the claim will not necessarily depend on the resolution of a 19 substantial question of federal law, because Plaintiff need not prove compliance with any 20 provision of Title 42 of the United States Code in order to establish its claim. See, e.g., Grable & 21 Sons Metal Prods. v. Darue Eng. & Mfg., 545 U.S. 308, 314-15 (2005). To the extent Defendant 22 believes that a provision of Title 42 will be relevant or essential in mounting a defense to the 23 unlawful detainer action, this is an insufficient basis for federal subject matter jurisdiction. 24 Franchise Tax Bd., 463 U.S. at 10, 14; see also Caterpillar, 482 U.S. at 393 (“[I]t is now settled 25 law that a case may not be removed to federal court on the basis of a federal defense . . . even if 26 the defense is anticipated in the plaintiff’s complaint and even if both parties concede that the 27 federal defense is the only question truly at issue.”). 28 // 2 1 2 3 4 5 6 7 8 9 In his notice of removal, Defendant also cites 28 U.S.C. section 1443 as a basis for jurisdiction. Section 1443 provides, in part, that: [a]ny of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof[.] 28 U.S.C. § 1443(1). A party seeking to remove a case pursuant to Section 1443(1) must satisfy a two-part test. See Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006). The first requirement is that the 11 United States District Court Northern District of California 10 party “‘must assert, as a defense to the prosecution, rights that are given to them by explicit 12 statutory enactment protecting equal racial civil rights.’” Id. (quoting California v. Sandoval, 434 13 F.2d 635, 636 (9th Cir. 1970)). The second requirement is that the party “‘must assert that the 14 state courts will not enforce that right, and that allegation must be supported by reference to a state 15 statute or a constitutional provision that purports to command the state courts to ignore the federal 16 rights.’” Id. (quoting Sandoval, 434 F.2d at 636). 17 The Court has reviewed Defendant’s notice of removal, and the assertion that jurisdiction 18 exists under Section 1443(1) is largely conclusory and unsupported by facts from which the Court 19 can discern that this case falls within the scope of Section 1443(1). See, e.g., Ariza v. Skinner, No. 20 17-cv-00546-DMR, 2017 WL 939019, at *2-*3 (N.D. Cal. Feb. 16, 2017), report and 21 recommendation adopted by 2017 WL 929561 (N.D. Cal. Mar. 9, 2017); Wells Fargo Bank, N.A. 22 v. Vann, No. 13-cv-01148-YGR, 2013 WL 1856711, at *4 (N.D. Cal. May 2, 2013) (“Similar to 23 28 U.S.C. section 1343, section 1443(1) will not provide jurisdiction where allegations of 24 discrimination are conclusory and lacking factual basis.”). 25 It thus appears that this Court lacks subject matter jurisdiction to hear this matter, that 26 Plaintiff’s motion to remand should be granted, and that this action should be remanded back to 27 Humboldt County Superior Court. See 28 U.S.C. § 1447(c); see also Maniar v. FDIC, 979 F.2d 28 782, 785 (9th Cir. 1992). Rather than granting Plaintiff’s motion as unopposed, the Court will 3 1 pro ovide Defend with a final opportu dant f unity to addr ress the issue of jurisdict e tion. 2 Accord dingly, the Court HEREB ORDERS Defendant TO SHOW CAUSE wh this case BY S t W hy 3 sho ould not be remanded to Humboldt County Supe r C erior Court. Defendant’s response to this Order s o 4 to Show Cause shall be due by no later than Augus 14, 2017. In light of t length of time that S e e r st the f 5 has elapsed sin it was filed, the Cour DENIES, A MOOT, Plaintiff’s m s nce rt AS motion to hav the ve 6 mo otion to rema heard on shortened time. The C and n t Court will per rmit Plaintif to submit a response to ff o 7 De efendant’s or rder to show cause, whic shall be du by no late than Augu 21, 2017. At that ch ue er ust 8 tim the Court will take th matter und submissi and will rule on the i me, t he der ion issue of juris sdiction 9 wit thout a heari ing. 10 United States District Court Northern District of California 11 12 If Defen ndant fails to respond to this Order t Show Cau by Augu 14, 2017, the Court o o to use ust wil remand the case for lack of subject matter juri sdiction. ll e Finally, the Court advises Defendant that th a Handbo for Pro S Litigants, which , a hat ook Se 13 con ntains helpfu informatio about proceeding with ul on hout an attor rney, is avail lable throug the gh 14 Court’s website or in the Clerk’s office The Cour also advise Defendant that he may seek C e. rt es y 15 ass sistance from the Legal Help Center. Defendant may seek su assistance by calling the Legal m H . t uch g 16 He Center at 415-782-89 or by sig elp 982 gning up for a free appoin ntment with an attorney who may be h e 17 abl to provide basic legal help, but no legal repre le e ot esentation, on the 15th Floor of the S n San 18 Fra ancisco Cour rthouse, 450 Golden Gat Avenue, R 0 te Room 2796, San Francis Californ or on the sco, nia, e 19 4th Floor of the Oakland Courthouse, 1301 Clay St h e C 1 treet, Room 470S, Oakland, Califor rnia. 20 21 22 23 IT IS SO ORDER S RED. Da ated: July 28 2017 8, ___ __________ ___________ __________ ________ JEF FFREY S. W WHITE Un nited States D District Judg ge 24 25 26 27 28 4

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