holding that conclusionary statements lacking any factual basis cannot support removal under § 1443(1)
How later courts described this case
- holding that conclusionary statements lacking any factual basis cannot support removal under § 1443(1)
Written by the judges who cited it.
The opinion
Case 2:22-cv-01401-MWF-GJS Document 8 Filed 03/04/22 Page 1 of 3 Page ID #:23
1 JS-6
2
UNITED STATES DISTRICT COURT
3
CENTRAL DISTRICT OF CALIFORNIA
4
AVB STUDIO CITY, LP,
CASE NUMBER:
5
6 2:22-cv-01401-MWF (GJSx)
Plaintiff(s),
7 v.
8 EBONY BROWN, et al.,
ORDER REMANDING CASE TO
9 STATE COURT
10
Defendant(s).
11
12 The Court sua sponte REMANDS this action to the California Superior Court for the
13 County of L o s A n g e l e s for lack of subject matter jurisdiction, as set forth below.
14 “The right of removal is entirely a creature of statute and ‘a suit commenced in a state
15 court must remain there until cause is shown for its transfer under some act of Congress.’”
16 Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (quoting Great N. Ry. Co. v.
17 Alexander, 246 U.S. 276, 280 (1918)). Generally, where Congress has acted to create a right of
18 removal, those statutes are strictly construed against removal jurisdiction. Id.; Nevada v. Bank of
19 Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
20 Unless otherwise expressly provided by Congress, a defendant may remove “any civil
21 action brought in a State court of which the district courts of the United States have original
22 jurisdiction.” 28 U.S.C. § 1441(a); Dennis v. Hart, 724 F.3d 1249, 1252 (9th Cir. 2013). The
23 removing defendant bears the burden of establishing federal jurisdiction. Abrego Abrego v.
24 Dow Chem. Co., 443 F.3d 676, 682 (9th Cir. 2006); Gaus, 980 F.2d at 566-67. “Under the plain
25 terms of § 1441(a), in order properly to remove [an] action pursuant to that provision, [the
26 removing defendant] must demonstrate that original subject-matter jurisdiction lies in the federal
27 courts.” Syngenta Crop Prot., 537 U.S. at 33. Failure to do so requires that the case be remanded,
28 as “[s]ubject matter jurisdiction may not be waived, and . . . the district court must remand if it
CV-136 (03/22) ORDER REMANDING CASE TO STATE COURT Page 1 of 3
Case 2:22-cv-01401-MWF-GJS Documents Filed 03/04/22 Page 2of3 Page ID #:24
1 |] lacks jurisdiction.” Kelton Arms Condo. Owners Ass'n v. Homestead Ins. Co., 346 F.3d 1190,
2 |j 1192 (9th Cir. 2003) (citation omitted). “If at any time before final judgment it appears that the
3 || district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
4 |] It is “elementary that the subject matter jurisdiction of the district court is not a waivable matter
5 |] and may be raised at anytime by one of the parties, by motion or in the responsive pleadings, or
6 |] sua sponte by the trial or reviewing court.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2
7 || (9th Cir. 1988).
8 From a review of the Notice of Removal and the state court records provided, it is evident
9 }j that the Court lacks subject matter jurisdiction over the instant case, for the following reasons.
□□ No basis for federal question jurisdiction has been identified:
11
The Complaint does not include any claim “arising under the Constitution, laws,
12 or treaties of the United States.” 28 U.S.C. § 1331.
13
Removing defendant(s) asserts that the affirmative defenses at issue give rise to
14 federal question jurisdiction, but “the existence of federal jurisdiction depends
solely on the plaintiff's claims for relief and not on anticipated defenses to those
15 claims.” ARCO Env’t Remediation, L.L.C. v. Dept. of Health and Env't Quality,
16 213 F.3d 1108, 1113 (9th Cir. 2000). An “affirmative defense based on federal law”
does not “render[] an action brought in state court removable.” Berg v. Leason, 32
17 F.3d 422, 426 (9th Cir. 1994). A “case may not be removed to federal court on the
18 basis of a federal defense . . . even if the defense is anticipated in the plaintiff's
complaint, and even if both parties admit that the defense is the only question truly
19 at issue in the case.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S.
1, 14 (1983).
20
21 Removing defendant(s) has not alleged facts sufficient to show that the
requirements for removal under 28 U.S.C. § 1443 are satisfied. Section 1443(1)
22 provides for the removal of a civil action filed “[a]gainst any person who is denied
3 or cannot enforce in the courts of such State a right under any law providing for
the equal civil rights of citizens of the United States ....” Even assuming that the
24 removing defendant(s) has asserted rights provided “by explicit statutory
enactment protecting equal racial civil rights,” Patel v. Del Taco, Inc., 446 F.3d 996,
999 (9th Cir. 2006) (citation omitted), defendant(s) has not identified any “state
6 statute or a constitutional provision that purports to command the state courts to
ignore the federal rights” or pointed “to anything that suggests that the state court
27 would not enforce [defendant’s] civil rights in the state court proceedings.” Id.
28 (citation omitted); see also Bogart v. California, 355 F.2d 377, 381-82 (9th Cir.
1966) (holding that conclusionary statements lacking any factual basis cannot
support removal under § 1443(1)). Nor does § 1443(2) provide any basis for
CV-136 (03/22) ORDER REMANDING CASE TO STATE COURT Page 2 of 3
Case 2:22-cv-01401-MWF-GJS Document8 Filed 03/04/22 Page 3o0f3 Page ID #:25
1 removal, as it “confers a privilege of removal only upon federal officers or agents
and those authorized to act with or for them in affirmatively executing duties
under any federal law providing for equal civil rights” and on state officers who
3 refuse to enforce discriminatory state laws. City of Greenwood v. Peacock, 384
U.S. 808, 824 & n.22 (1966).
5 The underlying action is an unlawful detainer proceeding, arising under and
governed by the laws of the State of California.
9 Removing defendant(s) claims that 28 U.S.C. § 1334 confers jurisdiction on this
Court, but the underlying action does not arise under Title 11 of the United States
8 Code.
9 Diversity jurisdiction is lacking, and/or this case is not removable on that basis:
10 Every defendant is not alleged to be diverse from every plaintiff. 28 U.S.C. §
ri 1332(a).
12 The Complaint does not allege damages in excess of $75,000, and removing
defendant(s) has not plausibly alleged that the amount in controversy requirement
13 has been met. Id.; see Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81,
14 89 (2014).
15 The underlying unlawful detainer action is a limited civil action that does not
16 exceed $25,000.
7 [_] Removing defendant(s) is a citizen of California. 28 U.S.C. § 1441(b)(2).
18 Removing party is not a named defendant in the underlying Complaint. See 28
USS.C. § 1441(a); Sharma v. HSI Asset Loan Obligation Tr. 2007-1, 23 F.4th 1167,
19 1170-71 (9th Cir. 2022).
20 CI
21
22
23
24
IT IS THEREFORE ORDERED that this matter be, and hereby is, REMANDED to the Superior
25 |! Court of California listed above, for lack of subject matter jurisdiction.
6 ll IT IS SO ORDERED.
27
OMY Cende
ff W Uons)
Date: March 4, 2022 Mecpxory yy: WDA)
MICHAEL W. FITZGERALD
United States District Judge
CV-136 (03/22) ORDER REMANDING CASE TO STATE COURT Page 3 of 3