1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 GILBERT SALINAS, Case No.: 3:21-cv-346-CAB-AGS

10 Plaintiff,

ORDER SUA SPONTE REMANDING

11 v. CASE TO STATE COURT 12 FELCOR HOTEL ASSET COMPANY, LLC; BHR OPERATIONS, LLC; and 13

DOES 1-10;

14 Defendants. 15

16 The original complaint in this action, filed in state court, asserted one claim under 17 federal law for violation of the Americans with Disabilities Act (“ADA”), along with a 18 claim for violation of California’s Unruh Act. Defendants Felco Hotel Asset Company, 19 LLC and BHR Operations, LLC (collectively “Defendants”) removed the action to this 20 Court under 28 U.S.C. § 1441(a) based on the existence of a federal question (the ADA 21 claim) and supplemental jurisdiction over the state claims. Defendants subsequently filed 22 a motion to dismiss the complaint. [Doc. No. 9.] 23 On April 10, 2021, Plaintiff amended his complaint in response to Defendants’ 24 motion to dismiss. [Doc. No. 11.] Plaintiff’s First Amended Complaint (“FAC”) drops 25 the ADA claim and instead asserts only two state law claims for violation of the Unruh Act 26 and California’s Unfair Competition Law. [Id.] The FAC asserts jurisdiction based on 27 28 1 removal because the case “originally contained an ADA claim and defendants removed the 2 case from state court to federal court.” [Id. ¶ 4.] 3 A suit filed in state court may be removed to federal court by the defendant or 4 defendants if the federal court would have had original subject matter jurisdiction over that 5 suit. 28 U.S.C. § 1441(a); Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 6 (9th Cir. 2009). On the other hand, “[i]f at any time before final judgment it appears that 7 the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. 8 § 1447(c); see also Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 9 F.3d 1190, 1192 (9th Cir. 2003) (“Subject matter jurisdiction may not be waived, and, 10 indeed, we have held that the district court must remand if it lacks jurisdiction.”). The 11 Court may remand sua sponte or on motion of a party. See Snell v. Cleveland, Inc., 316 12 F.3d 822, 826 (9th Cir. 2002) (“Federal Rule of Civil Procedure 12(h)(3) provides that a 13 court may raise the question of subject matter jurisdiction, sua sponte, at any time during 14 the pendency of the action . . . .”). “The removal statute is strictly construed, and any doubt 15 about the right of removal requires resolution in favor of remand.” Moore-Thomas, 553 16 F.3d at 1244. 17 Generally, subject matter jurisdiction is based on the presence of a federal question, 18 see 28 U.S.C. § 1331, or on complete diversity between the parties, see 28 U.S.C. § 1332. 19 “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded 20 complaint rule,’ which provides that federal jurisdiction exists only when a federal question 21 is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. 22 Williams, 482 U.S. 386, 392 (1987). The complaint must establish “either that federal law 23 creates the cause of action or that the plaintiff’s right to relief necessarily depends on 24 resolution of a substantial question of federal law.” Franchise Tax Bd. v. Constr. Laborers 25 Vacation Trust, 463 U.S. 1, 27-28 (1983). 26 Here, the FAC alleges two state law claims for violation of California’s Unruh Act 27 and Unfair Competition Law. The FAC does not allege any cause of action involving 28 federal law, or that Plaintiff’s right to relief depends on the resolution of a substantial 1 |/question of federal law. Jd. Thus, federal question jurisdiction is absent because no 2 || “federal question is presented on the face of plaintiff's properly pleaded complaint.” 3 || Caterpillar, 482 U.S. at 392. 4 Nor is there diversity jurisdiction. For a federal court to exercise diversity 5 jurisdiction, the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a). 6 || The FAC states that it seeks injunctive relief, “equitable nominal damages for violation of 7 rights,” and actual damages plus statutory damages of at least $4,000 per offense 8 |}under the Unruh Act. [Doc. No. 11.] However, it is not facially evident from the FAC that 9 ||the amount in controversy exceeds $75,000, and neither party has presented evidence 10 || indicating otherwise. 11 Based on the foregoing, the Court lacks subject matter jurisdiction over this matter 12 REMANDS the case to San Diego County Superior Court. 13 IT IS SO ORDERED. 14 ||Dated: April 13, 2021 15 16 € Ee 17 Hon. Cathy Ann Bencivengo 18 United States District Judge 19 20 21 22 23 24 25 26 27 28