1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 GOLD RIDGE APARTMENTS OWNER, No. 2:20-cv-00129-JAM-EFB

LLC,

13 Plaintiff, 14 SUA SPONTE ORDER REMANDING v. ACTION TO STATE COURT 15

RENEE EPPERLY,

16 Defendant. 17 18 19 The undersigned revokes any actual or anticipated referral 20 to a Magistrate Judge for the purposes of Findings and 21 Recommendations in this case. See Local Rule 302(d) 22 (“Notwithstanding any other provision of this Rule, a Judge may 23 retain any matter otherwise routinely referred to a Magistrate 24 Judge.”). 25 On January 17, 2020, Defendant Renee Epperly filed a Notice 26 of Removal with this Court, seeking to remove an action from the 27 Sacramento County Superior Court. Notice of Removal, ECF No. 1. 28 For the following reasons, the Court sua sponte REMANDS this case 1 to Sacramento County Superior Court. 2 Under 28 U.S.C. § 1441(a), a defendant may remove an action 3 to federal court if the district court has original jurisdiction. 4 Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 5 (quoting Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 861 (9th 6 Cir. 2003)). If at any time before final judgment it appears 7 that the district court lacks subject matter jurisdiction, the 8 case shall be remanded. 28 U.S.C. § 1447(c). Generally, a 9 defendant seeking to remove an action to federal court must file 10 a notice of removal within thirty days of receiving a copy of the 11 initial pleading. 28 U.S.C. § 1446(b). The defendant seeking 12 removal of an action to federal court has the burden of 13 establishing federal jurisdiction in the case. California ex 14 rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). 15 Here, Defendant attempts to invoke the Court’s federal 16 question jurisdiction. Notice of Removal at 2. Defendant argues 17 that this Court has jurisdiction because Plaintiff’s complaint 18 “was filed in retaliation against Defendant for her attempting to 19 exercise her [First Amendment] right.” Id. at 2. Federal courts 20 are courts of limited jurisdiction and lack inherent or general 21 subject matter jurisdiction. Federal courts can adjudicate only 22 those cases authorized by the United States Constitution and 23 Congress. Generally, those cases involve diversity of 24 citizenship or a federal question, or cases in which the United 25 States is a party. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 26 375 (1994); Finley v. United States, 490 U.S. 545 (1989). 27 Federal courts are presumptively without jurisdiction over civil 28 actions. Kokkonen, 511 U.S. at 377. Lack of subject matter 1 jurisdiction is never waived and may be raised by the Court sua 2 sponte. Attorneys Trust v. Videotape Computer Prods., Inc., 93 3 F.3d 593, 594-95 (9th Cir. 1996). “Nothing is to be more 4 jealously guarded by a court than its jurisdiction. Jurisdiction 5 is what its power rests upon. Without jurisdiction it is 6 nothing.” In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988). 7 The Ninth Circuit has held that the removal statute should 8 be strictly construed in favor of remand and against removal. 9 Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 10 2005). The “strong presumption” against removal jurisdiction 11 means that the defendant always has the burden of establishing 12 that removal is proper. Nishimoto v. Federman–Bachrach & 13 Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990); Emrich v. Touche 14 Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Federal 15 jurisdiction must be rejected if there is any doubt as to the 16 right of removal in the first instance. Gaus v. Miles, Inc., 980 17 F.2d 564, 566 (9th Cir. 1992). 18 In determining the presence or absence of federal 19 jurisdiction in removal cases, the “well-pleaded complaint rule” 20 applies, “which provides that federal jurisdiction exists only 21 when a federal question is presented on the face of the 22 plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. 23 Williams, 482 U.S. 386, 392 (1987). Moreover, “it is well 24 established that plaintiff is the ‘master of her complaint’ and 25 can plead to avoid federal jurisdiction.” Lowdermilk v. U.S. 26 Bank Nat’l Ass’n, 479 F.3d 994, 998-99 (9th Cir. 2007); Metro. 27 Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (citing Gully v. 28 First Nat’l Bank, 299 U.S. 109 (1936)) (“It is long settled law 1 that a cause of action arises under federal law only when the 2 plaintiff’s well-pleaded complaint raises issues of federal 3 law.”). 4 In this case, Defendant is unable to establish jurisdiction 5 before this Court because the complaint filed in the state court, 6 19-UD-06481, contains a single cause of action for unlawful 7 detainer. Unlawful detainer actions are strictly within the 8 province of state court. A defendant’s attempt to create federal 9 subject-matter jurisdiction by adding claims or defenses to a 10 notice of removal will not succeed. Vaden v. Discover Bank, 556 11 U.S. 49, 50 (2009) (federal question jurisdiction cannot “rest 12 upon an actual or anticipated counterclaim”); Valles v. Ivy Hill 13 Corp., 410 F.3d 1071, 1075 (9th Cir. 2005) (“A federal law 14 defense to a state-law claim does not confer jurisdiction on a 15 federal court, even if the defense is that of federal preemption 16 and is anticipated in the plaintiff’s complaint.”). As such, 17 Defendant’s attempt to assert a First Amendment retaliation 18 defense to Plaintiff’s unlawful detainer action does not give 19 rise to federal question jurisdiction here. 20 The Court REMANDS this case to Sacramento County Superior 21 Court for all future proceedings. Defendant’s motion to proceed 22 in forma pauperis, ECF No. 2, is DENIED as moot. The Clerk of 23 the Court is directed to close this case. 24 25 Dated: January 17, 2020 /s/ John A. Mendez 26 HONORABLE JOHN A. MENDEZ United States District Court Judge 27

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