Emeric Goodman Assocs. LLC

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Case No. 18-cv-06188-DMR (N.D. Cal. Oct. 24, 2018)

Case No. 18-cv-06188-DMR




Defendant Marimar Cornejo removed this case pursuant to 28 U.S.C. § 1441 from the Superior Court of California, County of San Francisco, where it was pending as a complaint for unlawful detainer against Defendant. The Notice of Removal states one ground for removal: that the Complaint presents a federal question such that the case could have originally been filed in this court. Notice of Removal ¶ 5. Defendant also filed an application to proceed in forma pauperis ("IFP"). [Docket No. 3.]

Pursuant to 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or other defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "If the district court at any time determines that it lacks jurisdiction over the removed action, it must remedy the improvident grant of removal by remanding the action to state court." Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.), opinion amended on denial of reh'g, 387 F.3d 966 (9th Cir. 2004) (citing 28 U.S.C. § 1447). "The removal statute is strictly construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to the party invoking the statute." Id. Defendant filed a declination to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). [Docket No. 4.] Therefore, the court issues herein a Report and Recommendation and reassigns this case to a District Judge for final disposition, with the recommendation that the IFP application be granted and summary remand be ordered.


Having evaluated Defendant's financial affidavit, the court finds that Defendant has satisfied the economic eligibility requirement of 28 U.S.C. § 1915(a) and therefore recommends that the IFP application be granted. The court next turns to the issue of subject matter jurisdiction.


Federal courts are courts of limited jurisdiction, and a "federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock W., Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citations omitted). "[T]he presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). That rule applies equally to evaluating the existence of federal questions in cases brought initially in federal court and in removed cases. See Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 n.2 (2002). Relevant for purposes here, a federal question exists only when it is presented by what is or should have been alleged in the complaint. Id. at 830. The implication of a federal question through issues raised by an answer or counterclaim does not suffice to establish federal question jurisdiction. Id. at 831; see also ARCO Envtl. Remediation, LLC v. Dep't of Health & Envtl. Quality of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000) ("[A] case may not be removed to federal court on the 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 at issue in the case." (citation and internal quotation marks omitted) (brackets in original)).

According to Defendant's Notice of Removal, a federal question arises under 28 U.S.C. § 1443 because "Defendant is being denied rights to equal protection under the law based on her racial identity . . . and thus cannot enforce in the state court a right to a fair and impartial hearing, and to her own choice of Counsel, and to her own personal Assistant to exercise her speech at the court, which are fundamental and basic Civil Rights protected by the Federal Constitution and Laws of the United States[.]" Notice of Removal ¶ 5. Under section 1443, however, Defendant must satisfy a two-part test to sustain removal: they must (1) "assert, as a defense to the prosecution, rights that are given to them by explicit statutory enactment protecting equal racial civil rights" and (2) "assert that the state courts will not enforce that right, and that allegation must be supported by reference to a state statute or a constitutional provision that purports to command the state courts to ignore the federal rights." Bank of Am., N.A. v. Richards, No. 10-1062 CW, 2010 WL 1525728, at *2 (N.D. Cal. Apr. 15, 2010) (citing Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006)) (quotation marks omitted). Even assuming Defendant is able to satisfy the first prong, Defendant fails to satisfy the second, as Defendant has not cited any state law that suggests that the San Francisco County Superior Court will not enforce Defendant's federal rights. //

Section 1443 states:

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied 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, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.


For the reasons above, the court recommends that Defendant's IFP application be granted and that this action be remanded to the San Francisco Superior Court. The Clerk is directed to reassign this case to a District Judge.

Any party may file objections to this report and recommendation with the District Judge within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a); N.D. Cal. Civ. L.R. 72-2.

IT IS SO ORDERED. Dated: October 24, 2018


Donna M. Ryu

United States Magistrate Judge

§ 1443.

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