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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION

11 BIRE II LLC and HIGH POINT ) Case No.: SACV 23-02277-CJC (ADSx) ) 12 HOLDINGS, LLC, ) ) 13 ) Plaintiffs, ) ORDER SUA SPONTE REMANDING 14 ) CASE FOR SECOND TIME v. ) 15 ) ) 16 HELEN HORWICH and DOES 1-5, ) inclusive, ) 17 ) ) 18 Defendant. ) ) 19 ) 20 Plaintiffs Bire II LLC and High Point Holdings, LLC filed this unlawful detainer 21 action in state court on February 24, 2023. (See Dkt. 1 [Notice of Removal, hereinafter 22 “NOR”], Ex. 2 at 2, Ex. 4 [First Amended Complaint filed in April 2023].) Defendant 23 Helen Horwich, acting pro se, filed an answer in state court on September 19, 2023. (See 24 Case No. SACV 23-01977-CJC (JDEx), Dkt. 7.) She then removed the case to this Court 25 on October 20, 2023. (Id. Dkt. 1.) The Court sua sponte remanded the case on October 26 25, 2023, explaining that the Court lacked subject matter jurisdiction. (Id. Dkt. 7.) On 27 December 1, 2023, Defendant removed the case a second time. Concerningly, it appears 1 that trial in state court may have been set for December 4, 2023. (See Dkt. 1, Ex. 2 at 2.) 2 And based on documents filed with the Notice of Removal, Plaintiff contends that 3 Defendant has “stretched out the [unlawful detainer] process by 8 months” with 4 “frivolous delay tactics.” (Id. at 9.) 5 6 A defendant may remove a civil action filed in state court to a federal district court 7 if the federal court would have had original jurisdiction over the action. 28 U.S.C. 8 § 1441. Federal courts have a duty to examine their subject matter jurisdiction whether 9 or not the parties raise the issue. See United Investors Life Ins. Co. v. Waddell & Reed, 10 Inc., 360 F.3d 960, 966 (9th Cir. 2004) (“[A] district court’s duty to establish subject 11 matter jurisdiction is not contingent upon the parties’ arguments.”). They have subject 12 matter jurisdiction over cases that (1) involve questions arising under federal law or 13 (2) are between diverse parties and involve an amount in controversy that exceeds 14 $75,000. 28 U.S.C. §§ 1331, 1332. Principles of federalism and judicial economy 15 require courts to “scrupulously confine their [removal] jurisdiction to the precise limits 16 which [Congress] has defined.” See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 17 109 (1941). Indeed, “[n]othing is to be more jealously guarded by a court than its 18 jurisdiction.” See United States v. Ceja-Prado, 333 F.3d 1046, 1051 (9th Cir. 2003) 19 (internal quotations omitted). The defendant removing the action to federal court bears 20 the burden of establishing that the district court has subject matter jurisdiction, and the 21 removal statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 22 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction must be rejected if there is any doubt 23 as to the right of removal in the first instance.”). A “court may—indeed must—remand 24 an action sua sponte if it determines that it lacks subject matter jurisdiction.” GFD, LLC 25 v. Carter, 2012 WL 5830079, at *2 (C.D. Cal. Nov. 15, 2012). 26 27 The Court lacks subject matter jurisdiction over this case. Plaintiffs’ First 1 (Dkt. 1, Ex. 4.) It does not include any claim “arising under the Constitution, laws, or 2 treaties of the United States.” 28 U.S.C. § 1331; see Home Depot U.S.A., Inc. v. Jackson, 3 139 S. Ct. 1743, 1748 (2019). Defendant contends that she is “a tenant protected under 4 the Obama’s ‘Protecting Tenants at Foreclosure Act of 2009,’” (NOR at 1–2), but her 5 potential defenses or counterclaims against Plaintiffs are not enough to invoke this 6 Court’s subject matter jurisdiction. See Holmes Group, Inc. v. Vornado Air Circulation 7 Systems, Inc., 535 U.S. 826, 831 (2002) (explaining that the general removal statute does 8 not permit removal based on counterclaims); ARCO Envtl. Remediation, L.L.C. v. Dept. 9 of Health and Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000) (“[T]he existence of 10 federal jurisdiction depends solely on the plaintiff’s claims for relief and not on 11 anticipated defenses to those claims.”); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th 12 Cir. 2005) (similar). 13 14 Next, even if there is diversity jurisdiction as Defendant contends, (NOR at 5), 15 Defendant may not remove this case based on diversity jurisdiction because she herself is 16 a local defendant. “A civil action otherwise removable” based on diversity jurisdiction 17 “may not be removed if any of the parties in interest properly joined and served as 18 defendants is a citizen of the State in which such action is brought.” 28 U.S.C. 19 § 1441(b)(2); see Spencer v. U.S. Dist. Ct. for N. Dist. of Cal., 393 F.3d 867, 870 (9th 20 Cir. 2004). “This forum defendant rule reflects the belief that [federal] diversity 21 jurisdiction is unnecessary because there is less reason to fear state court prejudice 22 against the defendants if one or more of them is from the forum state.” Spencer, 393 F.3d 23 at 870 (citation and quotes omitted). Defendant concedes that she is a citizen of 24 California, (NOR ¶¶ 12, 14), so she may not remove this case based on diversity 25 jurisdiction. 26 27 Contrary to Defendant’s argument, this is also not a proper “civil rights removal.” 1 commenced in state court if she “is denied or cannot enforce in the courts of such State a 2 right under any law providing for the equal civil rights of citizens of the United 3 States[.]” The Supreme Court has established a two-prong test to determine whether 4 removal is proper under § 1443(1). “First, it must appear that the right allegedly denied 5 the removal petitioner arises under a federal law ‘providing for specific civil rights stated 6 in terms of racial equality,’” rather than a constitutional or statutory provision of general 7 applicability or pursuant to a statute that does not protect specifically against racial 8 discrimination. Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (citation omitted). 9 “Second, it must appear . . . that the removal petitioner is ‘denied or cannot enforce’ the 10 specified federal rights ‘in the courts of (the) State.’” Id. This “normally requires that 11 the ‘denial be manifest in a formal expression of state law,’ such as a state legislative or 12 constitutional provision, ‘rather than a denial first made manifest in the trial of the case.’” 13 Id. (citations omitted). Defendant has failed to demonstrate this action falls within the 14 ambit of Section 1443(1). Plaintiff’s contention that Section 1443(1) applies because 15 “there is a pervasive state statutory program which both on its face and as applied 16 discriminates unfairly against pro se litigants,” (NOR at 11), fails to identify a a “federal 17 law ‘providing for specific civil rights stated in terms of racial equality,’” rather than a 18 law of general applicability, id., or “a California statute or constitutional provision that 19 purports to command the state court to ignore [her] federal civil rights,” Wong v. 20 Kracksmith, Inc., 764 F. App’x 583, 584 (9th Cir. 2019) (mem.). 21 22 Finally, it also appears that Defendant’s removal was untimely. A defendant must 23 remove a civil case within thirty days of being served. 28 U.S.C. § 1446(b)(1). Though 24 the Court does not know exactly when Defendant was served, it is clear that she removed 25 after this deadline because she removed the case more than thirty days after she filed an 26 answer to Plaintiffs’ First Amended Complaint in state court. 27 1 Accordingly, the Court sua sponte REMANDS this case to Orange County 2 Superior Court. The Court warns Defendant that all filings in federal court are subject to 3 || Federal Rule of Civil Procedure 11, which forbids presenting filings “for any improper 4 || purpose, such as to .. . cause unnecessary delay” and authorizes sanctions for 5 violations. If Defendant attempts to improperly remove this case again, the Court may be 6 || forced to impose appropriate monetary sanctions against her. 7 DATED: December 6, 2023 Ko ft 9 ffs _f re 10 CORMAC J. CARNEY 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28