1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IRINA ZHURAVLEVA, Case No.: 19cv1497-L(LL)

12 Plaintiff,

CLASS ACTION

13 v.

ORDER REMANDING ACTION TO

14 UNITED STATES POLO

STATE COURT

ASSOCIATION,

15 Defendant. 16 17 18 Defendant United States Polo Association removed this false advertising action 19 from state court pursuant to 28 U.S.C. §§1331 and 1441. For the reasons stated below, 20 the action is remanded. 21 "Federal courts are courts of limited jurisdiction. They possess only that power 22 authorized by Constitution or statute, which is not to be expanded by judicial decree. It is 23 to be presumed that a cause lies outside this limited jurisdiction, and the burden of 24 establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. 25 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). 26 Consistent with the limited jurisdiction of federal courts, the removal statute is 27 strictly construed against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 28 1 1992). Furthermore, "[i]f at any time before final judgment it appears that the district 2 court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). 3 “[A]ny civil action brought in a State court of which the district courts of the 4 United States have original jurisdiction, may be removed . . ..” 28 U.S.C. § 1441(a). 5 Defendant's notice of removal is based on 28 U.S.C. §1331, which confers "original 6 jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the 7 United States." Defendant claims federal question exists in this case because Plaintiff 8 references Fair Trade Commission Act, 15 U.S.C. §§41 et seq. ("FTCA") and 9 implementing regulations in the complaint, although Plaintiff chose to assert only state 10 law claims alleging violations of (1) the unfair, fraudulent and unlawful prongs of 11 California's Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; 12 (2) California's False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq.; and 13 California's Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. Defendant 14 removed the case because an FTCA violation is alleged as one of the alternative bases for 15 violation of the unlawful prong of the UCL. (Compl. ¶¶84, 88.) Plaintiff did not 16 separately allege an FTCA claim. 17 "[T]he presence or absence of federal-question jurisdiction is governed by the well- 18 pleaded complaint rule, which provides that federal jurisdiction exists only when a 19 federal question is presented on the face of the plaintiff's properly pleaded complaint." 20 Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998) (internal quotation marks, 21 brackets and citation omitted). "[T]he plaintiff is the 'master' of [his] case, and if []he can 22 maintain [his] claims on both state and federal grounds, []he may ignore the federal 23 question, assert only state claims, and defeat removal." Duncan v. Stuetzle, 76 F.3d 1480, 24 1485 (9th Cir. 1996). 25 Here, Plaintiff chose to allege only state law claims. In such cases, the claim 26 "arises under" federal law only if the claim necessarily raises a stated federal issue, which 27 is actually disputed and substantial, and which a federal forum may entertain without 28 disturbing any congressionally approved balance of federal and state judicial 1 ||/responsibilities. Gunn v. Minton, 568 U.S. 251, 258 (2013). Where, as here, a state law 2 ||claim incorporates a federal standard as an element of one of alternative theories of 3 || liability, the federal issue is not necessarily raised, and the claim does not "arise under" 4 ||federal law. Ultramar Am. Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990); see also 5 || Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 810 (1988); Duncan, 76 F.3d 6 jl at 1486. 7 Accordingly, Defendant has not met its burden of establishing removal 8 ||jurisdiction. Because the notice of removal fails to establish federal jurisdiction, this 9 || action is REMANDED to the Superior Court of the State of California for the County of 10 || San Diego. 11 IT IS SO ORDERED. 12 13 Dated: August 15, 2019

15 H . James Lorenz, 6 United States District Judge

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