Boustead v. Powell

Filing 11

ORDER REMANDING CASE. Signed by Judge Phyllis J. Hamilton on 12/8/2017. (pjhlc2, COURT STAFF) (Filed on 12/8/2017) (Additional attachment(s) added on 12/8/2017: # 1 Certificate/Proof of Service) (dtmS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NICHOLAS BOUSTEAD,

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v.

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ALICIA POWELL,

ORDER REMANDING CASE

Defendant.

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United States District Court
Northern District of California

Case No. 17-cv-06854-PJH

Plaintiff,

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Pro se defendant Alicia Powell, a resident of California, removed this case from

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the Superior Court of California, Contra Costa County, where it was pending as a

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complaint for unlawful detainer. The Notice of Removal states that the complaint

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presents a federal question such that the case could have and should have been filed in

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this court.1 Dkt. 1, Notice of Removal ¶¶ 5-14. Powell also filed an application to

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proceed in forma pauperis (“IFP”). Dkt. 2.
The court has an obligation to determine whether it has jurisdiction over a

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removed case. Under the federal removal statute, “any civil action brought in a State

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court of which the district courts of the United States have original jurisdiction, may be

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removed by the defendant or other defendants, to the district court of the United States

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for the district and division embracing the place where such action is pending.” 28 U.S.C.

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§ 1441(a). “If the district court at any time determines that it lacks jurisdiction over the

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removed action, it must remedy the improvident grant of removal by remanding the action

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Powell does not claim diversity jurisdiction exists, does not dispute that both parties
reside in California, and makes no claim regarding the amount in controversy.

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to state court.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.), opinion

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amended on denial of reh’g, 387 F.3d 966 (9th Cir. 2004) (citing 28 U.S.C. § 1447). “The

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removal statute is strictly construed against removal jurisdiction, and the burden of

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establishing federal jurisdiction falls to the party invoking the statute.” Id.

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A.

IFP APPLICATION
Under 28 U.S.C. § 1915(a), “[a]ny court of the United States may authorize the

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commencement . . . of any suit . . . without prepayment of fees and costs or security

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therefor, by a person who makes affidavit that he is unable to pay such costs or give

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security therefor.” In evaluating an IFP application, the court should “gran[t] or den[y] IFP
status based on the plaintiff's financial resources alone and then independently

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United States District Court
Northern District of California

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determin[e] whether” the case was properly removed. Franklin v. Murphy, 745 F.2d

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1221, 1226–27 n. 5 (9th Cir.1984).

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In her IFP application, Powell states that her gross salary per month is $1,500.00.

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She is unmarried, and does not receive income from other sources. She does not own a

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home or a car, but has a bank account with Bank of America containing $135.00 and, at

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the time of the application, Powell had $65.00 in cash. While Powell does not currently

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pay rent, her other monthly expenses total $1,000.00. Powell does not appear to have

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any other debts.
Having evaluated plaintiff's financial affidavit attesting to the above, the court finds

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that Powell has satisfied the economic eligibility requirement of 28 U.S.C. § 1915(a) and

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GRANTS the application to proceed IFP.

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B.

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FEDERAL QUESTION JURISDICTION
Federal courts are courts of limited jurisdiction, and a “federal court is presumed to

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lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W.,

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Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citations omitted).

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“[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-

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

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question is presented on the face of the plaintiff's properly pleaded complaint.” Rivet v.
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Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar, Inc. v. Williams, 482

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U.S. 386, 392 (1987)). That rule applies equally to evaluating the existence of federal

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questions in cases brought initially in federal court and in removed cases. See Holmes

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Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 n.2 (2002). Relevant

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for purposes here, a federal question exists only when it is presented by what is or should

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have been alleged in the complaint. Id. at 830. The implication of a federal question

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through issues raised by an answer or counterclaim does not suffice to establish federal

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question jurisdiction. Id. at 831; see also ARCO Envtl. Remediation, LLC v. Dep't of

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Health & Envtl. Quality of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000) (“[A] case may not

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be removed to federal court on the basis of a federal defense, . . . even if the defense is

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United States District Court
Northern District of California

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anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is

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the only question truly at issue in the case.” (citation and internal quotation marks

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omitted) (brackets in original)).

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The complaint filed in Contra Costa County Superior Court only alleges a single

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state cause of action for unlawful detainer. Defendant’s notice of removal argues that

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there is a federal question based on the Protecting Tenants at Foreclosure Act of 2009

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(the “PTFA”). Defendant claims that plaintiff was required to state his cause of action

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under the PTFA and could not state an unlawful detainer claim under state law.

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First, “[i]t is well established that unlawful detainer claims do not arise under

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federal law and, without more, the court lacks federal-question jurisdiction.” Deutsche

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Bank Nat'l Trust Co. v. Young, No. C-14-3170, 2014 WL 7336696, at *3 (N.D. Cal. Dec.

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23, 2014) (collecting cases); Thawani v. Robertson, No. 16-CV-03732, 2016 WL

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4472986, at *1 (N.D. Cal. July 18, 2016), report and recommendation adopted, No. C 16-

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03732, 2016 WL 4436308 (N.D. Cal. Aug. 23, 2016) (same).

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Second, the PTFA does not apply here because it expired on December 31, 2014.

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Fairview Tasman LLC v. Young, No. 15-cv-5493, 2016 WL 199060, at *2 (N.D. Cal. Jan.

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18, 2016) (citing Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L.

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No. 111-203, 124 Stat. 1376, 2204 (2010)) (setting 2014 expiration date). Here, the
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unlawful detainer action was filed on October 12, 2017, and alleges that the property was

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not sold at auction until September 14, 2017. Dkt. 1 at 13, 15.

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Third, even if the PTFA were still in effect, the PTFA does not create a private right

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of action under federal law for ejectment. See Logan v. U.S. Bank Nat. Ass’n, 722 F.3d

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1163, 1169 (9th Cir. 2013) (concluding that the PTFA neither “explicitly nor impliedly

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creates a private right of action allowing [a tenant] to enforce the PTFA”); Fairview

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Tasman LLC, 2016 WL 199060, at *2 (discussing Logan and explaining that there is also

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“no implied right of action [under the PTFA] in favor of landlords”).

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Finally, at most, the PTFA is a federal defense to an unlawful detainer action. This
is insufficient to confer federal jurisdiction. See Valles v. Ivy Hill Corp., 410 F.3d 1071,

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United States District Court
Northern District of California

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1075 (9th Cir. 2005) (“A federal law defense to a state-law claim does not confer

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jurisdiction on a federal court, even if the defense is that of federal preemption . . . .”);

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Bay Home Pres. Serv. v. Thao Nguyen, No. 15-CV-00506, 2015 WL 1262144, at *2 (N.D.

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Cal. Mar. 17, 2015) (concluding “[a]s numerous other district courts in this Circuit have

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concluded, the PTFA may provide a federal defense, but does not provide a basis for

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federal jurisdiction”) (citing cases).
CONCLUSION

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For the reasons stated above, the court lacks subject matter jurisdiction, and thus,

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the court finds that the case must be REMANDED to the Superior Court for Contra Costa

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County. Accordingly, plaintiff’s motion to remand filed on December 7, 2017, is DENIED

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as moot.

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IT IS SO ORDERED.
Dated: December 8, 2017
__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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