1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JOSHUA HARRELL, Case No. 23-cv-02210-BLF

8 Plaintiff,

ORDER DENYING PLAINTIFF’S

9 v. MOTION TO REMAND

10 BOARD OF TRUSTEES OF THE [Re: ECF 16] CALIFORNIA STATE UNIVERSITY, et 11 al.,

12 Defendants.

13 14 Joshua Harrell (“Harrell”), a student at San Jose State University (“SJSU”), sues SJSU and 15 multiple SJSU employees under federal and state laws. Harrell filed the action in the Santa Clara 16 County Superior Court, and Defendants removed the action to federal district court on the basis of 17 federal question jurisdiction. See Not. of Removal, ECF 1. Now before the Court is Harrell’s 18 motion to remand, which has been fully briefed and taken under submission without oral 19 argument. See Mot., ECF 16; Opp., ECF 23; Reply, ECF 24; Order, ECF 21. 20 The motion to remand is DENIED for the reasons discussed below. 21 I. LEGAL STANDARD 22 “A defendant may remove an action to federal court based on federal question jurisdiction 23 or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 24 (citing 28 U.S.C. § 1441). “The strong presumption against removal jurisdiction means that the 25 defendant always has the burden of establishing that removal is proper, and that the court resolves 26 all ambiguity in favor of remand to state court.” Id. (internal quotation marks and citation 27 omitted). “If at any time before final judgment it appears that the district court lacks subject 1 II. DISCUSSION 2 Although Harrell filed the motion to remand, Defendants bear the burden of establishing 3 subject matter jurisdiction under the standard set forth above. As noted, Defendants removed the 4 action based on federal question jurisdiction. Federal question jurisdiction exists for “all civil 5 actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. 6 “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded 7 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 8 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 9 482 U.S. 386, 392 (1987). 10 The complaint asserts thirteen claims arising from two incidents that occurred on April 20, 11 2022 and June 3, 2022, and related administrative proceedings. See generally Compl., Not. of 12 Removal Ex. A, ECF 1-1. The claims are: (1) conversion; (2) deprivation of property without due 13 process of law; (3) disability discrimination; (4) retaliation for constitutionally protected activity; 14 (5) retaliation against opposition to unlawful activity; (6) wrongful use of administrative 15 proceedings; (7) unlawful arrest; (8) unreasonable search and seizure; (9) failure to encourage 16 education by suitable means; (10) denial of right to attend safe, secure, and peaceful campus; (11) 17 denial of equal protection of the law; (12) breach of contract; and (13) intentional infliction of 18 emotional distress. 19 A number of these claims are expressly grounded in the United States Constitution and 20 federal statute, including Claim 2 for deprivation of property without due process under the 21 Fourteenth Amendment, see Compl. ¶ 384; Claim 3 for disability discrimination in violation of the 22 Americans with Disabilities Act, see id. ¶ 403; Claim 4 for retaliation against activity protected by 23 the First Amendment, see id. ¶¶ 408-09; Claim 5 for retaliation in violation of 42 U.S.C. § 24 12203(a); and Claim 7 for unlawful arrest in violation of the Fourth Amendment, see id. ¶ 429. 25 The Court clearly has federal question jurisdiction over these claims. The Court has supplemental 26 jurisdiction over the state law claims alleged in the complaint, which arise out of the same facts as 27 the federal claims. See 28 U.S.C. § 1367(a). 1 therefore are nonremovable. Some types of state court actions are nonremovable, as set forth in 28 2 U.S.C. § 1445. Nonremovable actions include certain civil actions against a railroad or its 3 receivers or trustees; certain civil actions against a carrier or its receivers or trustees; civil actions 4 arising under state workers’ compensation laws; and civil actions arising under section 40302 of 5 the Violence Against Women Act of 1994. See 28 U.S.C. § 1445(a) – (d). Claims grounded in 6 state education rights are not among the enumerated nonremovable actions. Accordingly, 7 Harrell’s argument that Claims 9 and 10 are nonremovable is without merit. 8 Harrell argues that Claims 9 and 10 are nonremovable under the Tenth Amendment, which 9 provides that, “The powers not delegated to the United States by the Constitution, nor prohibited 10 by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. 11 Harrell argues that “[t]he words ‘educate’, ‘education’, ‘student’, ‘school’, ‘college’, and 12 ‘university’ do not appear in the United States Constitution,” and therefore only a state court may 13 decide civil claims relating to state education rights. Harrell cites no case interpreting the Tenth 14 Amendment in this manner. Absent supporting case law, the Court declines to expand the list of 15 nonremovable actions enumerated in § 1445 to include civil actions relating to state education 16 rights. 17 The Court notes that even if it were to conclude that Claims 9 and 10 are nonremovable 18 (and it does not), such conclusion would not support Harrell’s remand motion. The statute 19 governing removal of civil actions, 28 U.S.C. § 1441, expressly provides that when a state court 20 action contains both a federal claim and “a claim not within the original or supplemental 21 jurisdiction of the district court or a claim that has been made nonremovable by statute,” the entire 22 action nonetheless may be removed if the action would be removable without inclusion of the 23 nonremovable claim. 28 U.S.C. § 1441(c)(1). The statute directs that upon removal, “the district 24 court shall sever from the action all claims” that are nonremovable and “shall remand the severed 25 claims to the State court from which the action was removed.” 28 U.S.C. § 1441(c)(2). Thus, 26 even if Harrell had established that Claims 9 and 10 are nonremovable, this Court would have 27 severed and remanded those claims pursuant to the directive of § 1441(c) and would not have 1 Harrell’s motion to remand is DENIED. 2 Il. ORDER 3 (1) Harrell’s motion to remand is DENIED; and 4 (2) This order terminates ECF 16. 5 6 || Dated: August 9, 2023 ’ otth wee Le FREEMAN 8 United States District Judge 9 10 11 a 12

13 14

15 16 € = 17 6 Zz 18 19 20 21 22 23 24 25 26 27 28