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UNITED STATES DISTRICT COURT

8 CENTRAL DISTRICT OF CALIFORNIA 9 Yi Jian Hu,

CASE NUMBER:

10 11 5:21-cv-01861-JGB-SHK Plaintiff 12 v. 13 Vincent Tovar-Licea, Osvaldo Tovar

ORDER REMANDING CASE TO

Gutierrez, 14 STATE COURT 15 Defendant(s). 16 17 The Court sua sponte REMANDS this action to the California Superior Court for the 18 County of S a n B e r n a r d i n o for lack of subject matter jurisdiction, as set forth below. 19 “The right of removal is entirely a creature of statute and ‘a suit commenced in a state 20 court must remain there until cause is shown for its transfer under some act of Congress.’” 21 Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002) (quoting Great Northern R. Co. 22 v. Alexander, 246 U.S. 276, 280 (1918)). Where Congress has acted to create a right of removal, 23 those statutes are strictly construed against removal jurisdiction. Id.; Nevada v. Bank of America 24 Corp., 672 F.3d 661, 667 (9th Cir. 2012); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 25 Unless otherwise expressly provided by Congress, a defendant may remove “any civil 26 action brought in a State court of which the district courts of the United States have original 27 jurisdiction.” 28 U.S.C. § 1441(a); Dennis v. Hart, 724 F.3d 1249, 1252 (9th Cir. 2013). The 28 removing defendant bears the burden of establishing federal jurisdiction. Abrego Abrego v. 1 || Dow Chemical Co., 443 F.3d 676, 682 (9th Cir. 2006); Gaus, 980 F.2d at 566-67. “Under the plain 2 || terms of § 1441(a), in order properly to remove [an] action pursuant to that provision, [the 3 || removing defendant] must demonstrate that original subject-matter jurisdiction lies in the federal 4 || courts.” Syngenta Crop Protection, 537 U.S. at 33. Failure to do so requires that the case be 5 || remanded, as “[s]ubject matter jurisdiction may not be waived, and ... the district court must 6 || remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass’n v. Homestead Ins. Co., 346 7 || F.3d 1190, 1192 (9th Cir. 2003). “If at any time before final judgment it appears that the district 8 || court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). It is 9 || “elementary that the subject matter jurisdiction of the district court is not a waivable matter and 10 || may be raised at anytime by one of the parties, by motion or in the responsive pleadings, or sua 11 || sponte by the trial or reviewing court.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2 12 (9th Cir. 1988). 13 From a review of the Notice of Removal and the state court records provided, it is evident 14 || that the Court lacks subject matter jurisdiction over the instant case, for the following reasons. 15 No basis for federal question jurisdiction has been identified: 16 The Complaint does not include any claim “arising under the Constitution, laws, 17 or treaties of the United States.” 28 U.S.C. § 1331. 18 Removing defendant(s) asserts that the affirmative defenses at issue give rise to 19 federal question jurisdiction, but “the existence of federal jurisdiction depends solely on the plaintiff's claims for relief and not on anticipated defenses to those 20 claims.” ARCO Envtl. Remediation, L.L.C. v. Dept. of Health and Envtl. Quality, 21 213 F.3d 1108, 1113 (9th Cir. 2000). An “affirmative defense based on federal law” does not “render[] an action brought in state court removable.” Berg v. Leason, 32 22 F.3d 422, 426 (9th Cir. 1994). A “case may not be removed to federal court on the basis of a federal defense .. . even if the defense is anticipated in the plaintiff's 23 . . . . . . complaint, and even if both parties admit that the defense is the only question truly 24 at issue in the case.” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 14 (1983). 25 6 The underlying action is an unlawful detainer proceeding, arising under and governed by the laws of the State of California. 27 28

1 Diversity jurisdiction is lacking: 2 Every defendant is not alleged to be diverse from every plaintiff. 28 U.S.C. § 3 1332(a). 4 The Complaint does not allege damages in excess of $75,000, and removing 5 defendant(s) has not plausibly alleged that the amount in controversy requirement has been met. Id.; see Dart Cherokee Basin Operating Co., LLC v. Owens, No. 6 13-719, 2014 WL 7010692, at *6 (U.S. Dec. 15, 2014). ? The underlying unlawful detainer action is a limited civil action that does not 8 exceed $25,000. 9 || IT IS THEREFORE ORDERED that this matter be, and hereby is, REMANDED to the Superior 10 || Court of California listed above, for lack of subject matter jurisdiction. Is SO ORDERED. 12 ! 13 | Date November 10,2072 = Lol = 4 pnited States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28