The People of the State of California ex Rel John G. Barison, City Attorney, City of Santa Cruz v. Pleich et al

Filing 21

ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE, REPORT AND RECOMMENDATIONS re 5 MOTION to Remand. Objections due by 2/3/2012. Signed by Magistrate Judge Howard R. Lloyd on 1/20/12. (hrllc1, COURT STAFF) (Filed on 1/20/2012)

1

** E-filed January 20, 2012 **

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

For the Northern District of California

NOT FOR CITATION

8

United States District Court

7

SAN JOSE DIVISION

11
12

THE PEOPLE OF THE STATE OF
CALIFORNIA ex rel JOHN G. BARISONE,
CITY ATTORNEY, CITY OF SANTA
CRUZ,

13

No. C11-05523 HRL
ORDER THAT CASE BE
REASSIGNED TO A DISTRICT
JUDGE

Plaintiffs,
14
15

v.

REPORT AND RECOMMENDATION

STEVE PLEICH; OCCUPY SANTA CRUZ;
and DOES 1-100,

[Re: Docket No. 5]

16
17
18

Defendants.
____________________________________/
Plaintiffs John Barisone, City Attorney of Santa Cruz, and the City of Santa Cruz brought

19

this action on behalf of the people of California alleging that defendants have created a public

20

nuisance in violation of state and local law. See Dkt. No. 1 (“Notice of Removal”), Exh. A

21

(“Complaint”). Plaintiffs claim that the defendants, the group Occupy Santa Cruz (“OSC”), Steve

22

Pleich, the group’s representative, and one hundred unnamed members of Occupy Santa Cruz have

23

camped continuously in an area called the San Lorenzo Park Benchlands since October 6, 2011. Id.

24

¶¶ 4, 7. Plaintiffs allege that despite having provided OSC with a permit that required the group to

25

obey park rules, clean the camp area, eliminate alcohol, cigarette, and illicit drug use in the camp,

26

and provide portable toilets, among other things, OSC has refused to abide by the terms of the

27

permit and has created “serious health and safety hazards” for the community. Id. ¶¶ 9-17.

28

1

Defendants removed this action from Santa Cruz Superior Court, and plaintiffs timely

2

moved to remand, claiming both procedural deficiencies in the removal notice and a lack of subject

3

matter jurisdiction. See Dkt. No. 5. Defendants did not timely oppose the motion. This court held a

4

hearing on the motion on January 3, 2012, at which time it invited defendants to submit an

5

opposition presenting any authority that would support subject matter jurisdiction over the action.

6

Defendants OSC and Steve Pleich have each filed oppositions of sorts, and the plaintiff has replied.

7

Dkt. Nos. 17, 19, 20.
Because not all parties have consented to the undersigned’s jurisdiction, this court ORDERS

8
9

the Clerk of the Court to reassign this case to a district judge. Based on the moving papers,

For the Northern District of California

United States District Court

10

arguments presented at hearing, and applicable authority, this court RECOMMENDS that plaintiff’s

11

motion to remand be granted.

12

LEGAL STANDARD

13

Removal to federal court is proper where the federal court would have had original subject

14

matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statute is strictly construed

15

against removal and places the burden on the defendant to demonstrate that removal was proper.

16

Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles,

17

Inc., 980 F.2d 564, 566 (9th Cir. 1992)). “If at any time before final judgment it appears that the

18

district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

19

However, “the district courts have no authority to remand a case sua sponte for procedural defects.”

20

Kelton Arms Condo. Owners Ass'n v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. Cal.

21

2003). 1

22
23
24
25
26
27
28

Federal courts have original jurisdiction over civil actions “arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if,
1

For instance, the “forum defendant rule” ordinarily imposes a limitation on actions
removed pursuant to diversity jurisdiction: “such action[s] shall be removable only if none of the
parties in interest properly joined and served as defendants is a citizen of the State in which such
action is brought.” 28 U.S.C. § 1441(b); see Spencer v. U.S. Dist. Ct. for the Northern Dist. of Cal.,
393 F.3d 867, 870 (9th Cir. 2004). However, the Ninth Circuit has held this rule to be procedural
and a waivable defect in the removal process, and a court acting sua sponte may not base its
decision to remand solely upon such a defect. Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 93536 (9th Cir. 2006).
2

1

based on the “well-pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v.

2

Discovery Bank, 129 S. Ct. 1262, 1271 (2009). Thus, "the plaintiff [is] the master of the claim; he or

3

she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams,

4

482 U.S. 386, 392 (1987). Defenses and counterclaims asserting a federal question do not satisfy

5

this requirement. Vaden, 129 S. Ct. at 1271.

6

DISCUSSION

7

In its complaint, plaintiff City of Santa Cruz sought relief under California state law and

8

Santa Cruz municipal law governing public nuisance. Complaint ¶¶ 8-9. The defendants contend

9

that removal is proper because their encampment constitutes an expression of their First and Ninth

For the Northern District of California

United States District Court

10

Amendment rights. See Notice of Removal, p. 3. OSC argues that any challenge to their

11

encampment, which was located in a “traditional public forum” but has since been disbanded, must

12

necessarily raise constitutional issues sufficient to establish federal jurisdiction. Dkt. No. 17 (“OSC

13

Opposition”), p. 3. Defendant Steve Pleich argues that the plaintiff has engaged in “artful pleading”

14

designed to disguise “an otherwise basic and unadorned federal question.” Dkt. No. 19 (“Pleich

15

Opposition”), p. 1. Both of these arguments must fail. The defendants have confused their potential

16

defenses and counterclaims, which may indeed be founded upon federal constitutional provisions,

17

and the plaintiff’s complaint, which seeks relief only under state and local law. “A suit ‘arises

18

under’ federal law ‘only when the plaintiff's statement of his own cause of action shows that it is

19

based upon [federal law].’” Vaden, 129 S. Ct. at 1272 (quoting Louisville & Nashville R. Co. v.

20

Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126 (1908)).

21

OSC cites to case law that holds parks to be traditional public forums, but this does not go to

22

the jurisdictional question before this court. See OSC Opp., p. 3. The case OSC cites, Wright v.

23

Incline Village General Improvement District, involved a plaintiff who brought suit to establish and

24

enforce his First Amendment rights. 2011 U.S. App. LEXIS 26086 (9th Cir. Dec. 27, 2011). The

25

procedural posture in Wright, where a federal question was stated on the face of the complaint, is

26

distinguishable from this case, where the only basis for federal jurisdiction is asserted defensively

27

by the removing defendants. The fact that defendants believe federal court would be the better

28

3

1

forum to adjudicate their constitutional defenses will not suffice to bestow jurisdiction over this

2

action. Accordingly, the undersigned finds that there is no subject matter jurisdiction.
In addition, neither is there subject matter jurisdiction based on diversity. Defendants do not

3

controversy exceeds $75,000. Plaintiffs, the “people of California” and the City of Santa Cruz, must

6

necessarily be California residents. While none of the moving papers include jurisdictional facts as

7

to defendants’ citizenship, the court notes that defendant Steve Pleich has provided a Santa Cruz

8

address as his contact address, so there cannot be complete diversity between the parties. Moreover,

9

a defendant who is a resident of the forum state is not entitled to remove an action to federal court

10

For the Northern District of California

assert diversity jurisdiction in their notice of removal, nor do they assert that the amount in

5

United States District Court

4

based on diversity. 28 U.S.C. § 1441(b) (stating that an action is removable for diversity “only if

11

none of the parties in interest properly joined and served as defendants is a citizen of the State in

12

which such action is brought”). While such a defect would not be sufficient grounds for remand

13

were this court acting sua sponte, such a procedural defect “bars removal” and is properly before the

14

court when the plaintiff moves to remand. See Spencer v. United States Dist. Court, 393 F.3d 867,

15

870 (9th Cir. Cal. 2004). Therefore, neither is there diversity jurisdiction over this matter, nor was

16

the removal proper when it occurred.

17

CONCLUSION

18

Because the parties have yet to consent to the undersigned’s jurisdiction, this court ORDERS

19

the Clerk of the Court to reassign this case to a District Judge. The undersigned further

20

RECOMMENDS that the newly assigned judge grant plaintiff’s motion and remand the case to

21

Santa Cruz County Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party

22

may serve and file objections to this Report and Recommendation within fourteen days after being

23

served.

24
25
26

IT IS SO ORDERED.
Dated: January 20, 2012
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

27
28

4

1

C11-05523 HRL Notice will be electronically mailed to:

2
3

Caio Arellano
John Barisone
Ed Frey

4

Notice will be provided by mail to:

5

Steve Pleich
2020 Halterman Avenue
Santa Cruz, CA 95062

6
7

[e-mail]
[e-mail]

Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

8
9

For the Northern District of California

United States District Court

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5