U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust v. Lukowski
Filing
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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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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U.S. BANK TRUST, N.A., AS TRUSTEE
FOR LSF9 MASTER PARTICIPATION
TRUST,
Plaintiff,
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United States District Court
Northern District of California
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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.
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On May 31, 2017, Defendant removed this unlawful detainer action from Humboldt
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County Superior Court, and he filed an application to proceed in forma pauperis. (Dkt. Nos. 1, 2.)
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On June 29, 2017, Plaintiff filed a motion to remand, was scheduled for a hearing on August 8,
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2017, and a motion asking that the Court hear the motion to remand on shortened time. Although
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Plaintiff consented to proceed before Magistrate Judge Vadas, to whom the case initially was
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assigned, Defendant did not file notice of consent. Accordingly, on July 25, 2017, the case was
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reassigned to the undersigned Judge.
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Plaintiff moves to remand the case to Humboldt County Superior Court on the basis that
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the Court lacks subject matter jurisdiction. Under the Northern District Civil Local Rules,
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Defendant’s opposition to the motion would have been due by no later than July 17, 2017.
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Defendant has not filed an opposition to the motion to remand.
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“[A]ny civil action brought in a State court of which the district courts of the United States
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have original jurisdiction, may be removed by the defendant . . . to the district court of the United
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States for the district and division embracing the place where such action is pending.” Franchise
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Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 7-8 (1983) (citation omitted); see also 28
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U.S.C. § 1441(a). However, federal courts are courts of limited jurisdiction. See, e.g., Kokkonen
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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, the burden of
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establishing federal jurisdiction for purposes of removal is on the party seeking removal, and the
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removal statute is strictly construed against removal jurisdiction. Valdez v. Allstate Ins. Co., 372
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F.3d 1115, 1117 (9th Cir. 2004); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
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“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first
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instance.” Gaus, 980 F.2d at 566.
“The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded
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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
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United States District Court
Northern District of California
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avoid federal jurisdiction by exclusive reliance on state law.” Id. Thus, under the well-pleaded
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complaint rule, federal-question jurisdiction arises where the “complaint establishes either that
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federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on
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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
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28 U.S.C. section 1441(b)(2). In addition, this action is an unlawful detainer action and, thus,
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federal law does not create the cause of action. Moreover, notwithstanding the assertions in
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Defendant’s notice of removal, the claim will not necessarily depend on the resolution of a
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substantial question of federal law, because Plaintiff need not prove compliance with any
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provision of Title 42 of the United States Code in order to establish its claim. See, e.g., Grable &
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Sons Metal Prods. v. Darue Eng. & Mfg., 545 U.S. 308, 314-15 (2005). To the extent Defendant
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believes that a provision of Title 42 will be relevant or essential in mounting a defense to the
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unlawful detainer action, this is an insufficient basis for federal subject matter jurisdiction.
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Franchise Tax Bd., 463 U.S. at 10, 14; see also Caterpillar, 482 U.S. at 393 (“[I]t is now settled
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law that a case may not be removed to federal court on the basis of a federal defense . . . even if
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the defense is anticipated in the plaintiff’s complaint and even if both parties concede that the
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federal defense is the only question truly at issue.”).
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//
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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
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United States District Court
Northern District of California
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party “‘must assert, as a defense to the prosecution, rights that are given to them by explicit
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statutory enactment protecting equal racial civil rights.’” Id. (quoting California v. Sandoval, 434
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F.2d 635, 636 (9th Cir. 1970)). The second requirement is that the party “‘must assert that the
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state courts will not enforce that right, and that allegation must be supported by reference to a state
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statute or a constitutional provision that purports to command the state courts to ignore the federal
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rights.’” Id. (quoting Sandoval, 434 F.2d at 636).
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The Court has reviewed Defendant’s notice of removal, and the assertion that jurisdiction
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exists under Section 1443(1) is largely conclusory and unsupported by facts from which the Court
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can discern that this case falls within the scope of Section 1443(1). See, e.g., Ariza v. Skinner, No.
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17-cv-00546-DMR, 2017 WL 939019, at *2-*3 (N.D. Cal. Feb. 16, 2017), report and
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recommendation adopted by 2017 WL 929561 (N.D. Cal. Mar. 9, 2017); Wells Fargo Bank, N.A.
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v. Vann, No. 13-cv-01148-YGR, 2013 WL 1856711, at *4 (N.D. Cal. May 2, 2013) (“Similar to
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28 U.S.C. section 1343, section 1443(1) will not provide jurisdiction where allegations of
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discrimination are conclusory and lacking factual basis.”).
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It thus appears that this Court lacks subject matter jurisdiction to hear this matter, that
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Plaintiff’s motion to remand should be granted, and that this action should be remanded back to
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Humboldt County Superior Court. See 28 U.S.C. § 1447(c); see also Maniar v. FDIC, 979 F.2d
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782, 785 (9th Cir. 1992). Rather than granting Plaintiff’s motion as unopposed, the Court will
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pro
ovide Defend with a final opportu
dant
f
unity to addr
ress the issue of jurisdict
e
tion.
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Accord
dingly, the Court HEREB ORDERS Defendant TO SHOW CAUSE wh this case
BY
S
t
W
hy
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sho
ould not be remanded to Humboldt County Supe
r
C
erior Court. Defendant’s response to this Order
s
o
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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
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has elapsed sin it was filed, the Cour DENIES, A MOOT, Plaintiff’s m
s
nce
rt
AS
motion to hav the
ve
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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
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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
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tim the Court will take th matter und submissi and will rule on the i
me,
t
he
der
ion
issue of juris
sdiction
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wit
thout a heari
ing.
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United States District Court
Northern District of California
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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
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con
ntains helpfu informatio about proceeding with
ul
on
hout an attor
rney, is avail
lable throug the
gh
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Court’s website or in the Clerk’s office The Cour also advise Defendant that he may seek
C
e.
rt
es
y
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ass
sistance from the Legal Help Center. Defendant may seek su assistance by calling the Legal
m
H
.
t
uch
g
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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
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abl to provide basic legal help, but no legal repre
le
e
ot
esentation, on the 15th Floor of the S
n
San
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Fra
ancisco Cour
rthouse, 450 Golden Gat Avenue, R
0
te
Room 2796, San Francis Californ or on the
sco,
nia,
e
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4th Floor of the Oakland Courthouse, 1301 Clay St
h
e
C
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treet, Room 470S, Oakland, Califor
rnia.
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IT IS SO ORDER
S
RED.
Da
ated: July 28 2017
8,
___
__________
___________
__________
________
JEF
FFREY S. W
WHITE
Un
nited States D
District Judg
ge
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