1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 United States Secretary of No. 2:19-cv-01644-JAM-KJN Housing and Urban 14 Development, 15 Plaintiff, SUA SPONTE ORDER REMANDING

ACTION TO STATE COURT

16 v. 17 Edward Schmidt, 18 Defendant. 19

20 The undersigned revokes any actual or anticipated referral 21 to a Magistrate Judge for the purposes of Findings and 22 Recommendations in this case. See Local Rule 302(d) 23 (“Notwithstanding any other provision of this Rule, a Judge may 24 retain any matter otherwise routinely referred to a Magistrate 25 Judge.”). 26 On August 23, 2019, Defendant Edward Schmidt filed a Notice 27 of Removal with this Court, seeking to remove an action from the 28 1 Sacramento Superior Court. Notice of Removal, ECF No. 1. For 2 the following reasons, the Court sua sponte REMANDS this case to 3 Sacramento County Superior Court. 4 Under 28 U.S.C. § 1441(a), a defendant may remove an action 5 to federal court if the district court has original jurisdiction. 6 Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 7 (quoting Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 861 (9th 8 Cir. 2003)). If at any time before final judgment it appears 9 that the district court lacks subject matter jurisdiction, the 10 case shall be remanded. 28 U.S.C. § 1447(c). Generally, a 11 defendant seeking to remove an action to federal court must file 12 a notice of removal within thirty days of receiving a copy of the 13 initial pleading. 28 U.S.C. § 1446(b). The defendant seeking 14 removal of an action to federal court has the burden of 15 establishing federal jurisdiction in the case. California ex 16 rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). 17 Here, Defendant attempts to invoke the Court’s federal 18 question jurisdiction. Notice of Removal at 1-2. Defendant 19 argues that this Court has federal question jurisdiction under 42 20 U.S.C. §§ 1443, 1983, 1985. Id. at 2. Federal courts are courts 21 of limited jurisdiction and lack inherent or general subject 22 matter jurisdiction. Federal courts can adjudicate only those 23 cases authorized by the United States Constitution and Congress. 24 Generally, those cases involve diversity of citizenship or a 25 federal question, or cases in which the United States is a party. 26 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Finley 27 v. United States, 490 U.S. 545 (1989). Federal courts are 28 presumptively without jurisdiction over civil actions. Kokkonen, 1 511 U.S. at 377. Lack of subject matter jurisdiction is never 2 waived and may be raised by the Court sua sponte. Attorneys 3 Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 4 (9th Cir. 1996). “Nothing is to be more jealously guarded by a 5 court than its jurisdiction. Jurisdiction is what its power rests 6 upon. Without jurisdiction it is nothing.” In re Mooney, 841 7 F.2d 1003, 1006 (9th Cir. 1988). 8 The Ninth Circuit has held that the removal statute should 9 be strictly construed in favor of remand and against removal. 10 Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 11 2005). The “strong presumption” against removal jurisdiction 12 means that the defendant always has the burden of establishing 13 that removal is proper. Nishimoto v. Federman–Bachrach & 14 Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990); Emrich v. Touche 15 Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Federal 16 jurisdiction must be rejected if there is any doubt as to the 17 right of removal in the first instance. Gaus v. Miles, Inc., 980 18 F.2d 564, 566 (9th Cir. 1992). 19 In this case, Defendant is unable to establish jurisdiction 20 before this Court because the complaint filed in the state court, 21 19-UD-02857, contains a single cause of action for unlawful 22 detainer. Unlawful detainer actions are strictly within the 23 province of state court. A defendant’s attempt to create federal 24 subject-matter jurisdiction by adding claims or defenses to a 25 notice of removal will not succeed. Vaden v. Discover Bank, 556 26 U.S. 49, 50 (2009) (federal question jurisdiction cannot “rest 27 upon an actual or anticipated counterclaim”); Valles v. Ivy Hill 28 Corp., 410 F.3d 1071, 1075 (9th Cir. 2005) (“A federal law 1 defense to a state-law claim does not confer jurisdiction on a 2 federal court, even if the defense is that of federal preemption 3 and is anticipated in the plaintiff’s complaint.”). 4 In determining the presence or absence of federal 5 jurisdiction in removal cases, the “well-pleaded complaint rule” 6 applies, “which provides that federal jurisdiction exists only 7 when a federal question is presented on the face of the 8 plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. 9 Williams, 482 U.S. 386, 392 (1987). Moreover, “it is well 10 established that plaintiff is the ‘master of her complaint’ and 11 can plead to avoid federal jurisdiction.” Lowdermilk v. U.S. 12 Bank Nat’l Ass’n, 479 F.3d 994, 998-99 (9th Cir. 2007); Metro. 13 Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (citing Gully v. 14 First Nat’l Bank, 299 U.S. 109 (1936)) (“It is long settled law 15 that a cause of action arises under federal law only when the 16 plaintiff’s well-pleaded complaint raises issues of federal 17 law.”). 18 Plaintiff’s complaint raises a single state law claim for 19 unlawful detainer. The face of a properly-pled state law 20 unlawful detainer action does not present a federal question. 21 Therefore, Plaintiff’s complaint avoids federal question 22 jurisdiction. Defendant cannot inject a federal issue through 23 his answer. 24 Moreover, a notice of removal based on § 1443(1) must 25 satisfy the two-part test articulated by the Supreme Court 26 in Georgia v. Rachel, 384 U.S. 780, 788–92 (1966) and City of 27 Greenwood, Miss. v. Peacock, 384 U.S. 808, 824–28 (1966). See 28 also Patel v. Del Taco, Inc., 446 F.3d 996, 998–99 (9th Cir. 1 2006). “First, the petitioners must assert, as a defense to the 2 prosecution, rights that are given to them by explicit statutory 3 enactment protecting equal racial civil rights.” California v. 4 Sandoval, 434 F.2d 635, 636 (9th Cir. 1970). “Second, 5 petitioners must assert that the state courts will not enforce 6 that right, and that allegation must be supported by reference to 7 a state statute or a constitutional provision that purports to 8 command the state courts to ignore the federal rights.” 9 Id. “The ground for removal under section 1443(1) is both 10 specific and extremely narrow.” JP Morgan Chase Bank, NA 11 vs. Omry Reznik, No. 15-cv-06590-RGK-AJWX, 2015 WL 5156442, at *2 12 (C.D. Cal. Sept. 1, 2015) (citing Davis v. Super. Ct. of State of 13 Cal., 464 F.2d 1272, 1273 (9th Cir. 1972)). 14 Defendant seeks removal of this action under 28 U.S.C. 1443, 15 but has failed to satisfy the two requirements of the test. 16 First, Defendant fails to identify the “explicit statutory 17 enactment protecting equal racial civil rights” that is violated 18 by the State’s action. Sandoval, 434 F.2d at 636. Defendant’s 19 reliance on 42 U.S.C. §§ 1983, 1985 is insufficient to meet the 20 first prong of the test as the Secretary of Housing and Urban 21 Development acts under the color of federal, rather than state, 22 law. Id. 23 Defendant also fails to satisfy the second criteria of the 24 test. Even if Defendant had properly identified a civil rights 25 violation under the United States Constitution, he has failed to 26 demonstrate that California state courts will not enforce that 27 right. Defendant does not and cannot identify any California 28 state law or constitutional provision that commands state courts 1 to ignore an amendment to the United States Constitution. 2 See Fed. Home Loan Mortg. Corp. v. Cantillano, No. CV 12–01641, 3 2012 WL 1193613, *3 (C.D.Cal. Apr. 9, 2012); HSBC Bank USA v. 4 Cabal, No. 10-cv-1621-WQH-POR, 2010 WL 3769092, *2 (S.D.Cal. 5 Sept. 21, 2010); See also Sandoval, 434 F.2d at 636 (“Bad 6 experiences with the particular court in question will not 7 suffice”)). 8 The Court REMANDS this case to Sacramento County Superior 9 Court for all future proceedings. Defendant’s motion to proceed 10 in forma pauperis, ECF No. 2, is DENIED as moot. 11 12 Dated: August 26, 2019 13 /s/ John A. Mendez________________ 14 United States District Court Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28