GBR Santa Palmia LLC v. Ainiwaer

Filing 7

ORDER For Reassignment to a District Judge; REPORT AND RECOMMENDATION re #1 Remand to State Court. Application to proceed in forma pauperis #2 granted. Signed by Magistrate Judge Virginia K. DeMarchi on 9/19/2022. (vkdlc2, COURT STAFF) (Filed on 9/19/2022)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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GBR SANTA PALMIA LLC,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 22-cv-05042-VKD

v.
ZULIFEIYA AINIWAER,
Defendant.

ORDER FOR REASSIGNMENT TO A
DISTRICT JUDGE; REPORT AND
RECOMMENDATION RE REMAND
TO STATE COURT
Re: Dkt. No. 2

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Defendant Zulifeiya Ainiwaer removed this unlawful detainer action from the Santa Clara

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County Superior Court. Defendant also seeks leave to proceed in forma pauperis (“IFP”). For the

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reasons stated below, the undersigned grants the IFP application, but nonetheless recommends that

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this matter be remanded to the state court for lack of federal subject matter jurisdiction.

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A court may grant IFP status and authorize the commencement of a civil action if the court

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is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C § 1915(a)(1). In

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evaluating an IFP application, the court should “gran[t] or den[y] IFP status based on the

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applicant’s financial resources alone and then independently determin[e] whether to dismiss the

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complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5

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(9th Cir. 1984), abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989). A court

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may dismiss a case filed without the payment of the filing fee whenever it determines that the

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action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or

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(iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii).

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The pending IFP application indicates that defendant qualifies financially for IFP status.

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Accordingly, the Court grants the application. Even so, defendant cannot proceed in this court

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because there is no federal subject matter jurisdiction over this matter.

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matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly

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construed against removal and place the burden on the defendant to demonstrate that removal is

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

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v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the Court has a continuing duty to

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determine whether it has subject matter jurisdiction. Fed. R. Civ. P. 12(h). A case must be

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remanded to the state court if it appears at any time before final judgment that the court lacks

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United States District Court
Northern District of California

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

subject matter jurisdiction. 28 U.S.C. § 1447(c).
Defendant fails to show that removal is proper based on any federal law. Federal courts

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have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of the

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United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well-

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pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank,

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556 U.S. 49, 60 (2009). Defenses and counterclaims asserting a federal question do not satisfy

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this requirement. Id. Here, plaintiff’s complaint presents a claim arising only under state law. It

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does not allege any federal claims whatsoever. See Dkt. No. 1 at ECF 8-10. Although defendant

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contends that plaintiff’s unlawful detainer action is based on a defective notice to quit, allegations

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in a removal notice or in a response to the complaint cannot provide this Court with federal

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question jurisdiction. See Vaden, 556 U.S. at 60. Accordingly, plaintiff’s unlawful detainer action

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does not arise under federal law.

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Although defendant does not assert diversity jurisdiction, this Court finds that there is no

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basis for it in any event. Federal district courts have jurisdiction over civil actions in which the

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matter in controversy exceeds the sum or value of $75,000 (exclusive of interest and costs) and is

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between citizens of different states. 28 U.S.C. § 1332. Inasmuch as the record indicates that

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defendant resides in California, defendant cannot remove this case on the basis of diversity. See

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28 U.S.C. § 1441(b)(2) (stating that an action may not be removed on the basis of diversity “if any

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of the parties in interest properly joined and served as defendants is a citizen of the State in which
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such action is brought.”); see also Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870 (9th Cir. 2004) (“It

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is thus clear that the presence of a local defendant at the time removal is sought bars removal.”).

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In any event, the complaint indicates that the amount demanded does not exceed $10,000. Dkt. 1

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at ECF 8. Moreover, unlawful detainer actions involve the right to possession alone, not title to

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the property. The fact that the subject property may be worth more than $75,000 is irrelevant.

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MOAB Investment Group, LLC v. Moreno, No. C14-0092 EMC, 2014 WL 523092 at *1 (N.D.

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Cal., Feb. 6, 2014); Maxwell Real Estate Investment LLC v. Bracho, No. C12-02774 RMW, 2012

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WL 2906762 at *1 (N.D. Cal., July 13, 2012).

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United States District Court
Northern District of California

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Based on the foregoing, the removal of this case was improper. Defendant is advised that
future attempts to remove this matter may result in sanctions.

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

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

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RECOMMENDS that the newly assigned judge remand the case to the Santa Clara County

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Superior Court. Any party may serve and file objections to this Report and Recommendation

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within fourteen days after being served. Fed. R. Civ. P. 72.

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IT IS SO ORDERED.
Dated: September 19, 2022

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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