1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS OLIVER, Case No.: 21cv1807-LL-DEB

12 Plaintiff,

ORDER DENYING MOTION TO

13 v. REMAND [ECF No. 10] 14 KRISTIN TAVIA MIHELIC, et al., 15 Defendants. 16 17 18 This matter is before the Court on Plaintiff Thomas Oliver’s Motion to Remand. 19 ECF No. 10. Defendants, Kristin Tavia Mihelic, Tiffany Louise Carroll, Louise Decarl 20 Adler, and the United States of America, filed an Opposition [ECF No. 14], and Plaintiff 21 filed a Reply [ECF No. 16]. The Motion is fully briefed, and the Court deems it suitable 22 for submission without oral argument. For the reasons set forth below, the Court denies the 23 Motion. 24 I. Background 25 Plaintiff, proceeding pro se, filed this lawsuit in San Diego County Superior Court, 26 and the operative first amended complaint (“FAC”) was filed on September 15, 2021. ECF 27 No. 1-2 at 2-8. The FAC alleges that the Defendants caused injury to Plaintiff through 28 negligent or other wrongful acts, and specifically alleges the following causes of action: 1 (1) perjury, (2) violation of constitutional rights, (3) falsified judicial and public records, 2 (4) falsified evidence, (5) fraud, (6) lost earning capacity, and (7) intentional infliction of 3 emotional distress. Id. 4 On October 22, 2021, the United States filed a notice of substitution for Defendants 5 Mihelic, Carroll, and Adler with respect to claims one and three through seven (hereinafter 6 “the FTCA claims”) in the FAC. ECF No. 2. The notice of substitution included a 7 certification from Assistant U.S. Attorney Katherine Parker that at the time of the conduct 8 alleged the Defendants were acting in the scope of their employment, respectively for the 9 Office of the United States Trustee and as an employee of the United States Courts. Id. at 10 2-3. On October 22, 2021, Defendants removed the complaint to this court based on 11 original jurisdiction under 28 U.S.C. § 1331. ECF No. 1 at 2-3. Defendants also removed 12 the case under 28 U.S.C. §§ 1441, 1442 and 1446 because the United States is a Defendant 13 in the action. Id. at 3. On November 22, 2021, Plaintiff filed the instant Motion to Remand. 14 ECF No. 10. 15 II. Legal Standards 16 “Federal courts are courts of limited jurisdiction. They possess only that power 17 authorized by Constitution and statute. . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 18 511 U.S. 375, 377 (1994). It is “presume[d] that federal courts lack jurisdiction unless the 19 contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991) 20 (internal quotation marks and citation omitted). “The right of removal is entirely a creature 21 of statute and a suit commenced in a state court must remain there until cause is shown for 22 its transfer under some act of Congress.” Syngenta Crop Protection, Inc. v. Henson, 537 23 U.S. 28, 32 (2002) (internal quotation marks and citation omitted). “The burden of 24 establishing federal jurisdiction is upon the party seeking removal. . . . ” Emrich v. Touche 25 Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Moreover, courts must “strictly construe 26 the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 27 (9th Cir. 1992). Therefore, “[f]ederal jurisdiction must be rejected if there is any doubt as 28 to the right of removal in the first instance.” Id. 1 Pursuant to 28 U.S.C. § 1331, this Court has original jurisdiction over civil actions 2 “arising under” federal law. “A case ‘arises under’ federal law either where federal law 3 creates the cause of action or ‘where the vindication of a right under state law necessarily 4 turn[s] on some construction of federal law.’” Republican Party of Guam v. Gutierrez, 277 5 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Constr. Laborers 6 Vacation Trust, 463 U.S. 1, 8–9 (1983)). “The presence or absence of federal-question 7 jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal 8 jurisdiction exists only when a federal question is presented on the face of the plaintiff's 9 properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). 10 III. Discussion 11 A. Plaintiff’s Federal Tort Claims Act Claims (Claims One and Three Through Seven in the FAC) 12 13 The Federal Tort Claims Act (“FTCA”) provides that district courts have exclusive 14 jurisdiction of civil actions against the United States for money damages “for injury or loss 15 of property, or personal injury or death caused by the negligent or wrongful act or omission 16 of any employee” of the federal government while acting within the scope of his office or 17 employment. 28 U.S.C. §§ 1346(b), 2671-2680. 18 Defendants removed the present action to federal court on the FTCA claims upon 19 certification that at the time of the conduct alleged in Plaintiff’s FAC, Defendants Mihelic, 20 Carroll, and Adler, were acting within the scope of their employment as federal employees. 21 ECF No. 2 at 2-3; 28 U.S.C. § 1346(b). Plaintiff alleges this removal was improper because 22 “[t]he Complaint at bar asserts no federal claims on its face or anywhere else.” ECF No. 23 10 at 3. Plaintiff further alleges in relevant part that “my complaint is anchored in state law 24 claims as clearly seen on its first page, so even if federal law is somehow brought into the 25 mix – which it is not as of now in light of my complaint, the papers Criminals1 have filed 26 in this court, this motion and my other papers, and the facts of the matter – the above 27 28 1 authority makes apparent that federal jurisdiction is not invoked.” Id. at 4. Plaintiff also 2 states that he “specifically chose state court because the likelihood that [the Defendants] 3 have friends there should be lower than here in federal court.” Id. at 2. 4 “The threshold requirement for removal under 28 U.S.C. § 1441 is a finding that the 5 complaint contains a cause of action that is within the original jurisdiction of the district 6 court.” Ansley v. Ameriquest Mortgage Co., 340 F. 3d 858, 861 (9th Cir. 2003) (quoting 7 Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir. 1998)). Plaintiff’s argument that “[t]he 8 Complaint at bar asserts no federal claims on its face or anywhere else” is without merit. 9 ECF No. 10 at 3. Under the FTCA, if a defendant employee’s conduct is certified to be 10 acting within the scope of his federal employment, the law provides for removal and 11 mandatory substitution of the United States in place of the employee. See 28 U.S.C. §§ 12 2679(d)(1), (2). Accordingly, even though Plaintiff did not name the United States as a 13 Defendant in his operative complaint, the United States was properly substituted on the 14 FTCA claims. The Court finds that Plaintiff’s FTCA claims were properly removed to 15 federal court. Thus, Plaintiff’s Motion to Remand the FTCA claims is denied. 16 B. Plaintiff’s Constitutional Claim (Claim Two in the FAC) 17 The FAC alleges a “violation of constitutional rights” as the second claim against 18 the individual Defendants Mihelic, Carroll, and Adler. ECF No. 1-2 at 4-5. Constitutional 19 claims for damages against individual government officials personally are cognizable 20 under Bivens. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 21 388 (1971). Plaintiff argues that “mere mention of the U.S. Constitution” does not create 22 federal question jurisdiction. ECF No. 10 at 6. Plaintiff’s argument is without merit. Under 23 28 U.S.C. § 1442(a)(1), a civil action that is commenced in state court and is against any 24 officer of the United States, in an official or individual capacity, relating to any act under 25 color of such office, may be removed to the district court of the United States for the district 26 where it is pending. 28 U.S.C. § 1442(a)(1). Thus, Plaintiff’s Motion to Remand claim 27 two is denied. 28 / / / 1 C. Consent and Removal 2 Finally, Plaintiff contends that this case should be remanded because all Defendants 3 did not consent prior to removal. ECF No. 10 at 12. Generally, parties seeking to remove 4 on the basis of federal question jurisdiction must also meet the requirements of 28 U.S.C. 5 § 1446(b), which requires defendants to remove within thirty days of receipt of initial 6 pleading or service of summons. The removal statute also requires that “all defendants who 7 have been properly joined and served must join in or consent to the removal of the action.” 8 28 U.S.C. § 1446(b)(2)(A). Thus, defendants who are not properly served are not required 9 to join in or consent to removal. See id. However, with respect to Plaintiff’s FTCA claims, 10 any civil action “shall be removed . . . at any time before trial.” 28 U.S.C. § 2679(d)(2); 11 see Osborn v. Haley, 549 U.S. 225, 231 (2007) (“When the Government removes an action 12 under the FTCA and the Attorney General certifies that the defendant employee was acting 13 within the scope of his or her employment with the United States, ‘exclusive competence 14 to adjudicate the case resides in the federal court, and that court may not remand the suit 15 to the state court.’”). Similarly, with respect to Plaintiff’s constitutional claim, consent was 16 also not required under 28 U.S.C. § 28 U.S.C. 1442(a)(1). See United Computer Systems 17 v. AT&T Corp., 298 F.3d 756, 762 (9th Cir. 2002) (a federal officer or agency defendant 18 can unilaterally remove a case under Section 1442). Accordingly, Plaintiff’s Motion to 19 Remand is denied on this basis. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / l IV. Conclusion 2 For the foregoing reasons, the Court DENIES Plaintiff's Motion to Remand. 3 || IT IS SO ORDERED. 4 Dated: February 8, 2022 NO 5 Je J 6 Honorable Linda Lopez 5 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28