1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NATIONAL CITY PUPPY, LLC Case No.: 19cv1942-LAB (BGS)

12 Plaintiff,

ORDER OF REMAND

13 v. 14 CITY OF NATIONAL CITY 15 Defendants. 16 17 Defendant City of National City removed this action from state court on the 18 basis of federal question jurisdiction. See 28 U.S.C. §§ 1331, 1441. The Court 19 ordered the City to show cause why this action should not be remanded. (“Order 20 to Show Cause,” Docket no. 3.) The City has now filed its response. (“Response,” 21 Docket no. 9.) 22 Legal Standards 23 The Court is always obligated to inquire into its own jurisdiction, Chapman v. 24 Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc), and must 25 confirm its jurisdiction before deciding any issue on the merits. See Valdez v. 26 Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004), This is particularly true in 27 removed actions, where the Court is obligated to remand if, at any time, jurisdiction 28 is lacking. 28 U.S.C. § 1447(c); Smith v. Mylan Inc., 761 F.3d 1042, 1044 (9th Cir. 1 2014). There is a “strong presumption” against removal, and the removing party 2 always bears the burden of showing that removal is proper. Gaus v. Miles, Inc., 3 980 F.2d 564, 566 (9th Cir.1992) (citation omitted). “Federal jurisdiction must be 4 rejected if there is any doubt as to the right of removal in the first instance.” Id. And 5 in any action, federal jurisdiction is presumed to be lacking, until it is affirmatively 6 established. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). 7 When determining whether federal question is present, the Court examines 8 the complaint as it existed at the time of removal. See Hunter v. Philip Morris USA, 9 582 F.3d 1039, 1042 (9th Cir. 2009). “The threshold requirement for removal under 10 28 U.S.C. § 1441 is a finding that the complaint contains a cause of action that is 11 within the original jurisdiction of the district court.” Id. (further citations omitted). 12 Under the “well-pleaded complaint rule,” federal question jurisdiction is present 13 only when a federal question is presented on the face of the face of the plaintiff’s 14 properly pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). 15 The caveat that the complaint be well-pleaded or properly pleaded means that a 16 plaintiff cannot avoid federal jurisdiction by “omitting from the complaint federal law 17 essential to his claim, or by casting in state law terms a claim that can be made 18 only under federal law.” Rains v. Criterion Sys., Inc., 80 F.3d 339, 344 (9th 19 Cir.1996) (further citations omitted). But otherwise, the plaintiff is master of its 20 complaint, and may plead its claims in a way that avoids federal jurisdiction. 21 California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838–39 (9th Cir. 2004). 22 As the Court’s Order to Show Cause pointed out, federal question jurisdiction 23 is not present in every case involving an appeal to federal law or the U.S. 24 Constitution. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 25 U.S. 308, 314 (2005). Federal question jurisdiction is present only where a well- 26 pleaded complaint shows either that federal law creates the cause of action, or the 27 plaintiff’s right to relief “necessarily depends on a substantial question of federal 28 law.” Armstrong v. N. Mariana Islands, 576 F.3d 950, 954–55 (9th Cir. 2009). A 1 right created by federal law “must be an element, and an essential one, of the 2 plaintiff’s cause of action.” Dynegy, 375 F.3d at 838 (quoting Gully v. First Nat’l 3 Bank in Meridian, 299 U.S. 109, 112 (1936)). “When a claim can be supported by 4 alternative and independent theories—one of which is a state law theory and one 5 of which is a federal law theory—federal question jurisdiction does not attach 6 because federal law is not a necessary element of the claim.” Rains, 80 F.3d at 7 346. 8 The Complaint 9 The complaint brings two causes of action, each based on multiple theories. 10 Some of the theories are federal in nature (see, e.g., Compl., ¶¶ 27 (Commerce 11 Clause), 33 (Equal Protection Clause)), and some are based on California 12 statutory law. (See, e.g., id., ¶¶ 36 (preemption by California Health & Safety Code 13 § 122354.5).) Some theories are alternatively federal and state (see id., ¶¶ 31 14 (procedural due process under U.S. and California constitution); or are ambiguous 15 as to whether they arise under federal law, state law, or both. (See id., ¶ 28 (void 16 for vagueness, ambiguous, arbitrary, and discriminatory).)1 The first claim seeks 17 an injunction forbidding the ordinance from being enforced because it is 18 “unconstitutional, invalid and unenforceable” (Compl., ¶ 25 and Prayer for Relief, 19 ¶ 1), and the second seeks a declaration that the ordinance is “unconstitutional 20 and/or otherwise invalid and unenforceable[.]” (Id., ¶ 38 and Prayer for Relief, ¶ 2.) 21

22 23 1 In support of this argument, the Complaint does not cite either the U.S. or California Constitution, even indirectly. The substance of the argument is that the 24 ordinance Plaintiff challenges should have been identified as criminal, civil, or 25 administrative in nature, so that the public would know whether its violation would result in an administrative warning, a civil nuisance lawsuit, or a misdemeanor 26 charge. A “void for vagueness” challenge can be brought under either the 27 California constitution or the Fourteenth Amendment of the U.S. Constitution. See People v. Toledo, 26 Cal.4th 221, 228–29 (2001) (discussing “void for vagueness” 28 1 Discussion 2 Although the Court directed the City’s attention to several issues that needed 3 to be addressed, the City’s Response fails to do so. 4 As the Order to Show Cause pointed out, neither of Plaintiff’s claims arises 5 under state law, and federal law is not an essential element of either claim. Both 6 are based on a variety of theories, some federal and some state. Plaintiff could 7 prevail on both claims and obtain all the relief it is seeking without any reference 8 to federal law at all. By way of example, a court could determine that the ordinance 9 in question violated procedural due process under the California constitution 10 (without reaching the federal due process question), or that it was preempted by 11 California Health & Safety Code § 122354.5, and could enjoin the ordinance and 12 declare it invalid on either of these grounds alone. While a court could reach federal 13 questions in order to decide all claims in Plaintiff’s favor, it need not do so. Because 14 it need not reach questions of federal law, federal law is not an essential element 15 of either of the claims. 16 The Order to Show Cause also pointed out that the Complaint did not identify 17 federal law as creating either claim. The Response does not point to any federal 18 statute that would authorize the claims Plaintiff is bringing, and none is apparent. 19 For example, neither claim can reasonably be construed as a claim under 42 20 U.S.C. § 1983, because each relies on both state and federal rights. See Ove v. 21 Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (§ 1983 claim can only be based on 22 violation of federal law). 23 The complaint as it stands is probably not properly pled under California law. 24 See Allen v. City of Sacramento, 234 Cal. App. 4th 41, 65–66 (Cal. App. 3 Dist. 25 2015) (holding that claim for an injunction forbidding the enforcement of an 26 ordinance was not, by itself, a cause of action). But the Court looks to the 27 Complaint as pled, not as Plaintiff might have pled it. See Rains, 80 F.3d at 344. 28 Any pleading error could be corrected without creating federal question jurisdiction, 1 because Plaintiff did not rely on any federal law (such as § 1983) as creating its 2 claims, and because federal law is not an essential element of either claim. 3 The Complaint makes clear Plaintiff believes the ordinance violates several 4 of Plaintiff’s rights, and Plaintiff wants it enjoined and declared unenforceable. The 5 Complaint treats various rights as theories, not separate claims. Plaintiff is not, for 6 example, seeking separate damages for violations of particular rights, or treating 7 violation of each right as a separate cause of action. Rather, Plaintiff wants only 8 an injunction forbidding the ordinance’s enforcement and a declaration that the 9 ordinance is unenforceable for at least one of the reasons identified in the 10 complaint. In the Complaint as it stands now, Plaintiff’s right to relief does not 11 depend on the construction or application of federal law. Plaintiff can prevail and 12 obtain everything the Complaint is asking for solely on the basis of California law. 13 The City’s Response ignores issues that the Court’s Order to Show Cause 14 raised. It also ignores both the language of the Complaint and its substance, even 15 though the Order to Show Cause pointed out state law theories just as this order 16 has done, supra. The Order to Show Cause made clear it was construing Plaintiff’s 17 separately-enumerated claims for an injunction and declaration as claims, and 18 arguments in favor of each as theories, not separate claims (see Order to Show 19 Cause at 1:21–23, 2:2–4, 2:18), but the Response without explanation dismisses 20 the Court’s construction and treats each of Plaintiff’s theories as if it were a 21 separate claim. 22 Attorneys commonly confuse claims with theories in this analysis. See 23 Tanner v. Kaiser, 2015 WL 6081771, at *4 (N.D. Cal., Oct. 15, 2015) (citing Rains) 24 (pointing out plaintiff’s conflation of theories with claims). That said, once the Court 25 pointed out the difference, the City should have looked more closely and 26 addressed this issue. If the Court had misconstrued the Complaint, this was the 27 City’s opportunity to point that out. Instead, the Response stubbornly avoids the 28 question, baldly asserting that the claims are based solely upon rights secured by 1 the U.S. Constitution, and calling them the “crux” and “heart” of the Complaint. 2 (See Response at 3:20–21; 4:17–19.) It all but ignores state law theories, and 3 sidesteps the question of whether they provide a sufficient basis for Plaintiff’s 4 claims. 5 The Response also confuses federal question jurisdiction with supplemental 6 jurisdiction, citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 (1988) and 7 City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156 (1997) as controlling. Those 8 cases, however, dealt with complaints that included both federal and state claims. 9 Plaintiff might have drafted its complaint to include both types of claims, and if it 10 had done so, the Court could have exercised jurisdiction over them. But Plaintiff 11 was not required to plead its claims this way, and did not. 12 Finally, the Response asserts that federal courts “routinely” exercise 13 jurisdiction over challenges to ordinances like this one, and string-cites six cases 14 from other courts, as well as one other previously-filed case in this District. The 15 City apparently did not look at the complaints in those cases, however. Had it done 16 so, it would have seen that in every case, at least one claim arose under federal 17 law, and adjudication of that claim would have required the courts to decide a 18 substantial question of federal law. The Complaint in this case looks nothing like 19 the complaints in those cases. 20 Conclusion and Order 21 The City has failed to show that this Court can exercise jurisdiction over the 22 removed action, and thus has failed to meet its burden of showing that removal 23 was proper, or to overcome the “strong presumption” against removal. See Gaus, 24 980 F.2d at 566. Because the Court cannot reach the merits of the case, all 25 pending motions are DENIED WITHOUT PREJUDICE and all pending dates or 26 deadlines are VACATED. This action is REMANDED to the Superior Court of 27 California for the County of San Diego. 28 / / / 1 But the Court retains jurisdiction over the issue of the propriety of removal, 2 ||and this order does not prevent Plaintiff from seeking costs or sanctions based on 3 improper removal. 4 5 IT IS SO ORDERED. 6 ||Dated: October 25, 2019 laug A Cpywr 8 Honorable Larry Alan Burns 9 Chief United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28