1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL LI, No. 2:19-cv-2256-JAM-EFB 12 Plaintiff, 13 v. SUA SPONTE ORDER REMANDING

ACTION TO STATE COURT

14 THERESA M DUNCAN, 15 Defendant. 16 17 The undersigned revokes any actual or anticipated referral 18 to a Magistrate Judge for the purposes of Findings and 19 Recommendations in this case. See Local Rule 302(d) 20 (“Notwithstanding any other provision of this Rule, a Judge may 21 retain any matter otherwise routinely referred to a Magistrate 22 Judge.”). 23 On November 8, 2019, Defendant Theresa Duncan filed a Notice 24 of Removal with this Court, seeking to remove an action from San 25 Joaquin County Superior Court. Notice of Removal, ECF No. 1. 26 For the following reasons, the Court sua sponte REMANDS this case 27 to San Joaquin County Superior Court. 28 Under 28 U.S.C. § 1441(a), a defendant may remove an action 1 to federal court if the district court has original jurisdiction. 2 Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 3 (quoting Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 861 (9th 4 Cir. 2003)). If at any time before final judgment it appears 5 that the district court lacks subject matter jurisdiction, the 6 case shall be remanded. 28 U.S.C. § 1447(c). Generally, a 7 defendant seeking to remove an action to federal court must file 8 a notice of removal within thirty days of receiving a copy of the 9 initial pleading. 28 U.S.C. § 1446(b). A defendant seeking 10 removal of an action to federal court has the burden of 11 establishing federal jurisdiction in the case. California ex 12 rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). 13 Federal courts are courts of limited jurisdiction and lack 14 inherent or general subject matter jurisdiction. Federal courts 15 can adjudicate only those cases authorized by the United States 16 Constitution and Congress. Generally, those cases involve 17 diversity of citizenship or a federal question, or cases in which 18 the United States is a party. Kokkonen v. Guardian Life Ins. 19 Co., 511 U.S. 375 (1994); Finley v. United States, 490 U.S. 545 20 (1989). Federal courts are presumptively without jurisdiction 21 over civil actions. Kokkonen, 511 U.S. at 377. Lack of subject 22 matter jurisdiction is never waived and may be raised by the 23 Court sua sponte. Attorneys Trust v. Videotape Computer Prods., 24 Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). “Nothing is to be 25 more jealously guarded by a court than its jurisdiction. 26 Jurisdiction is what its power rests upon. Without jurisdiction 27 it is nothing.” In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 28 1988). 1 The Ninth Circuit has held that the removal statute should 2 be strictly construed in favor of remand and against removal. 3 Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 4 2005). The “strong presumption” against removal jurisdiction 5 means that the defendant always has the burden of establishing 6 that removal is proper. Nishimoto v. Federman–Bachrach & 7 Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990); Emrich v. Touche 8 Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Federal 9 jurisdiction must be rejected if there is any doubt as to the 10 right of removal in the first instance. Gaus v. Miles, Inc., 980 11 F.2d 564, 566 (9th Cir. 1992). 12 Defendant attempts to remove an unlawful detainer action 13 based on federal subject matter jurisdiction. She appears to 14 argue two bases of federal jurisdiction: (1) 28 U.S.C. 15 § 1442(a)(1); and (2) 28 U.S.C. § 1331. Notice of Removal at 2. 16 Defendant first argues “[r]emoval [is] jurisdictionally proper 17 under 28 U.S.C. § 1442(a)(1), because Federal Defendant U.S. 18 Election Assistance Commission is an agency of[]the United 19 States.” Id. However, Plaintiff did not name the Election 20 Assistance Commission as a defendant in his unlawful detainer 21 action, so this argument is unavailing. 22 Moreover, Defendant failed to show Plaintiff’s unlawful 23 detainer action arises under federal law. The complaint filed in 24 state court contains a single cause of action for unlawful 25 detainer based on California Code of Civil Procedure § 1161a. 26 Unlawful detainer actions are strictly within the province of 27 state court. A defendant’s attempt to create federal subject 28 matter jurisdiction by adding claims or defenses to a notice of 1 removal will not succeed. Vaden v. Discover Bank, 556 U.S. 49, 2 50 (2009) (federal question jurisdiction cannot “rest upon an 3 actual or anticipated counterclaim”); Valles v. Ivy Hill Corp., 4 410 F.3d 1071, 1075 (9th Cir. 2005) (“A federal law defense to a 5 state-law claim does not confer jurisdiction on a federal court, 6 even if the defense is that of federal preemption and is 7 anticipated in the plaintiff’s complaint.”). 8 In determining the presence or absence of federal 9 jurisdiction in removal cases, the “well-pleaded complaint rule” 10 applies, “which provides that federal jurisdiction exists only 11 when a federal question is presented on the face of the 12 plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. 13 Williams, 482 U.S. 386, 392 (1987). Moreover, “it is well 14 established that plaintiff is the ‘master of her complaint’ and 15 can plead to avoid federal jurisdiction.” Lowdermilk v. U.S. 16 Bank Nat’l Ass’n, 479 F.3d 994, 998-99 (9th Cir. 2007); Metro. 17 Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (citing Gully v. 18 First Nat’l Bank, 299 U.S. 109 (1936)) (“It is long settled law 19 that a cause of action arises under federal law only when the 20 plaintiff’s well-pleaded complaint raises issues of federal 21 law.”). 22 Plaintiff’s complaint raises a single state law claim. The 23 face of a properly-pled state law unlawful detainer action does 24 not present a federal question. Therefore, Plaintiff’s complaint 25 avoids federal question jurisdiction. Defendant cannot inject a 26 federal issue through her answer or demurrer. 27 /// 28 /// 1 Accordingly, 2 1. This action is remanded forthwith to the San Joaquin 3 County Superior Court for lack of subject matter 4 jurisdiction; 5 2. The Clerk of the Court is directed to close this case. 6 IT IS SO ORDERED. 7 Dated: November 8, 2019 8 /s/ John A. Mendez___________ 9 U. S. District Court Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28