Mathews v. O'Malley

Filing 17

ORDER REMANDING CASE. Signed by Judge Jon S. Tigar on July 15, 2021. (mllS, COURT STAFF) (Filed on 7/15/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 THOMAS MATHEW, 7 Plaintiff, 8 ORDER GRANTING MOTION TO REMAND v. 9 KEVIN O’MALLEY, 10 Re: ECF No. 6 Defendant. 11 United States District Court Northern District of California Case No. 21-cv-02216-JST 12 Before the Court is Plaintiff Thomas Mathew’s motion to remand. ECF No. 6. The Court 13 14 will grant the motion. 15 I. BACKGROUND 16 Plaintiff initially brought this action for unlawful detainer on September 18, 2020, in Santa 17 Clara County Superior Court. ECF No. 2 at 3; ECF No. 6-2 at 8.1 Plaintiff alleges that Defendant 18 Kevin O’Malley is unlawfully in possession of Plaintiff’s residential property, located at 4540 19 Cadwallader Avenue, San Jose, CA 95121 (“the Property”). ECF No. 6-2 at 11. Plaintiff filed its 20 complaint as a “limited civil case” seeking less than $25,000 in damages. Id. 21 Plaintiff alleges that he entered into an oral agreement with Defendant in November 2016 22 to allow Defendant to occupy a motorhome owned by Plaintiff located at the Property at no cost. 23 Id. at 21. Defendant has not made any rental or utility payments for his occupancy and use of the 24 Property. Id. However, Plaintiff alleges that Defendant has “caused many issues” that have 25 required Plaintiff to “notify and warn [Defendant] on multiple occasions to protect [Plaintiff’s] 26 27 28 Because Defendant’s notice of removal is incomplete, and because the documents are incorporated by reference in Plaintiff’s complaint, the Court takes judicial notice sua sponte of the exhibits included in Defendant’s motion to dismiss, including Plaintiff’s underlying unlawful detainer complaint, Defendant’s answer, and Plaintiff’s notices to quit. ECF No. 6-2. 1 1 family and property.” Id. On June 22, 2020, Plaintiff served Defendant with a Sixty-Day Notice to Quit. See ECF 2 3 No. 6-2 at 2. On July 20, 2020, Plaintiff served Defendant with a Three-Day Notice to Perform or 4 Quit. See id. at 5. Subsequently, Plaintiff filed this action in Superior Court on September 18, 5 2020. See id. at 8. On September 30, 2020, Defendant filed his answer to the complaint in state 6 court. See id. at 28. On March 30, 2021, Defendant, proceeding pro se, removed this action to 7 federal court claiming federal subject matter jurisdiction. See ECF No. 1. Plaintiff moves to 8 remand, arguing that there is neither federal question nor diversity jurisdiction. ECF No. 6. 9 Plaintiff filed a proof of service of the motion on April 5, 2021. ECF No. 8. Defendant did not file a response. 11 United States District Court Northern District of California 10 II. 12 DISCUSSION “A defendant may remove an action to federal court based on federal question jurisdiction 13 or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 14 (citing 28 U.S.C. § 1441). If the district court determines that it lacks jurisdiction, the action must 15 be remanded back to state court. Martin v. Franklin Cap. Corp., 546 U.S. 132, 134 (2005). It is 16 the removing defendant’s burden to establish the basis for federal court jurisdiction. Nishimoto v. 17 Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990). 18 Because Plaintiff is appearing pro se, the Court construes the allegations of the notice of 19 removal liberally. Franklin v. Sargent, No. EDCV1602370CJCDTBX, 2016 WL 6820763, at *1 20 (C.D. Cal. Nov. 18, 2016); see also Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) 21 (instructing that courts “have a duty to construe pro se pleadings liberally”) (alteration and 22 citations omitted). 23 24 1. Diversity Jurisdiction There is no basis for diversity jurisdiction. The Civil Cover Sheet to the Notice of 25 Removal shows that all parties reside in San Jose, California. ECF No. 1-1. The complaint 26 alleges less than $25,000 in damages, below the $75,000 requirement for diversity jurisdiction. 28 27 U.S.C. § 1332(a). 28 2 2. 1 Federal Question Jurisdiction Defendant’s notice of removal appears to claim federal question jurisdiction because “the 2 3 unlawful detainer procedure and proceedings conducted by the landlord are completely in 4 violation of the United States Constitution,” “the proceedings [are] occurring in violation of [] 15 5 U.S.C. [§] 1692(A), and the Fourteenth Amendment of the U.S. Constitution.” ECF No. 2 at 2. 6 Notwithstanding, Plaintiff argues that there are no federal questions presented in this “run-of-the- 7 mill unlawful detainer complaint” and that “there are no substantial issues of federal law.” ECF 8 No. 6 at 4. The Court agrees. “Unlawful detainer claims do not arise under federal law and, without more, the court lacks 9 federal question jurisdiction.” Petaluma Theatre Square, LLC v. Hirsch, No. 19-cv-00026-LB, 11 United States District Court Northern District of California 10 2019 WL 1171162, at *1 (N.D. Cal. Feb. 25, 2019) (collecting cases), report and recommendation 12 adopted, No. 19-cv-00026-JST, 2019 WL 1168538 (N.D. Cal. Mar. 13, 2019); see also Saratoga 13 Fund Holdings, LLC v. Walker, No. 14-cv-04629-JST, 2014 WL 6969260, at *2 (N.D. Cal. Dec. 14 8, 2014) (finding no basis for jurisdiction in “unlawful detainer claim pursuant to California Code 15 of Civil Procedure § 1166”). Furthermore, a case may not be removed to federal court on the basis 16 of a federal defense. See Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 10 17 (1983); see also Partners v. Gonzalez, No. C-10-02598 EDL, 2010 WL 3447678, at *3 (N.D. Cal. 18 Aug. 30, 2010) (“To the extent that Defendant may have raised federal law issues in the answer or 19 believes that the state court [unlawful detainer] action was filed in violation of Defendant’s due 20 process rights, those issues do not provide a basis for removal.”). Accordingly, there is no cognizable basis for subject-matter jurisdiction in this dispute. 21 CONCLUSION 22 The Court concludes that it lacks subject-matter jurisdiction over this action. Accordingly, 23 24 the Court hereby REMANDS the case to Santa Clara County Superior Court. The Clerk shall 25 /// 26 /// 27 /// 28 /// 3 1 2 3 4 5 close the file. IT IS SO ORDERED. Dated: July 15, 2021 ______________________________________ JON S. TIGAR United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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