Dhanota v. Rogers et al

Filing 7

ORDER ADOPTING 5 REPORT AND RECOMMENDATION ON (1) REMANDING ACTION TO THE SANTA CLARA SUPERIOR COURT AND (2) DENYING WITHOUT PREJUDICE 2 APPLICATION TO PROCEED IN FORMA PAUPERIS. Signed by Judge Beth Labson Freeman on 7/16/2018. Signed by Judge Beth Labson Freeman on 7/16/2018. (blflc4S, COURT STAFF) (Filed on 7/16/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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KAMAL DHANOTA,
Plaintiff,

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v.

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TOOMI ROGERS, et al.,

United States District Court
Northern District of California

Defendants.
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Case No. 18-cv-02876-BLF
ORDER ADOPTING REPORT AND
RECOMMENDATION ON (1)
REMANDING ACTION TO THE
SANTA CLARA SUPERIOR COURT
AND (2) DENYING WITHOUT
PREJUDICE APPLICATION TO
PROCEED IN FORMA PAUPERIS
[ECF 1]

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Plaintiff Kamal Dhanota filed this unlawful detainer action in the Santa Clara Superior

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Court. Complaint, ECF 1-1. The complaint names Defendants Toomi Rogers and Pharoh Rogers

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AKA Pharsh Rogers. Id. Defendant Toomi Rogers (“Rogers”) removed the case to this Court by

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filing a notice of removal. Notice of Removal, ECF 1. On the same date, Rogers filed an

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application to proceed in forma pauperis (“IFP”). ECF 2.

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The Court has reviewed the Report and Recommendation (“Report”) of Magistrate Judge

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Susan van Keulen to remand this unlawful detainer action. ECF 5. No objections to the Report

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and Recommendation have been filed and the deadline to object has lapsed. See Fed. R.Civ. P.

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6(d), 72(b)(2) (deadline for objections is seventeen days after being served by mail).

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The Court finds the Report correct, well-reasoned and thorough, and adopts it in every

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respect. In particular, Rogers contends that “[f]ederal question exists because [of] Defendant’s

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Answer, a pleading depend[ing] on the determination of Defendant’s rights and Plaintiff’s duties

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under federal law.” Notice of Removal ¶ 10. However, Rogers’ contention that federal question

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jurisdiction exists fails because federal question arises from the face of a well-pleaded complaint

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by a plaintiff, not the defenses or counterclaims alleged by a defendant. Takeda v. Nw. Nat’l Life

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Ins. Co., 765 F.2d 815, 821–22 (9th Cir. 1985). Also, there is no basis for diversity jurisdiction.

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Rogers fails to establish that the action is between citizens of different states and that the amount

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in controversy exceeds the sum or value of $75,000 as required under 28 U.S.C. § 1332. Nor can

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a local defendant remove an action to federal court based on diversity jurisdiction. 28 U.S.C.

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§ 1441(b)(2). Accordingly, the Court concludes that there is no basis for removal.

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Regarding Rogers’ IFP application, the Court agrees with Judge van Keulen’s

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recommendation to deny the application without prejudice. The IFP application is incomplete

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because it states that Rogers receives money from Federal or State welfare payments, Social
Security, or another government source but does not state “the amount of money received from

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United States District Court
Northern District of California

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each” of these sources, as required in Question 2 of the application. ECF 2 at 2. As such, the

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Court lacks information that will allow it to determine whether Rogers financially qualifies for IFP

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status.

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For the foregoing reasons, the Court ADOPTS the Report. The Court REMANDS this

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action to the Santa Clara Superior Court for lack of subject matter jurisdiction and DENIES

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Roger’s IFP application without prejudice. The Clerk of Court shall close the case.

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IT IS SO ORDERED.

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Dated: July 16, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge

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