Jose Aquino et al v. Victor Page et al
Filing
13
MINUTES OF IN CHAMBERS - ORDER REMANDING CASE TO RIVERSIDE COUNTY SUPERIOR COURT by Judge Dolly M. Gee: On 9/19/2011, the Court issued an Order to Show Cause ("OSC") why this action should not be remanded to Riverside County Superior Court for lack of subject matter jurisdiction 11 . None of Plaintiffs' causes of action depends on the resolution of a substantial question involving the Communications Act. As this litigation involves no federal question, the Court lacks subject matter jurisdiction. Therefore, this action is hereby REMANDED to Riverside County Superior Court, Case Number RIC 1111484. ( Case Terminated. Made JS-6 ) Court Reporter: Not Reported. (Attachments: # 1 CV-103 Remand Transmittal Letter) (gk)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
Date
EDCV 11-01295 DMG (DTBx)
Title Jose Aquino, et al. v. Victor Page, et al.
Present: The Honorable
September 29, 2011
Page
1 of 2
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
VALENCIA VALLERY
Deputy Clerk
NOT REPORTED
Court Reporter
Attorneys Present for Plaintiff(s)
None Present
Attorneys Present for Defendant(s)
None Present
Proceedings: IN CHAMBERS—ORDER REMANDING CASE TO RIVERSIDE
COUNTY SUPERIOR COURT
On September 19, 2011, the Court issued an Order to Show Cause (“OSC”) why this
action should not be remanded to Riverside County Superior Court for lack of subject matter
jurisdiction [Doc. # 11]. On the same day, Defendants Victor Page, LaVerta Page, Vincent Page,
and Kevin Page (the “Pages”) filed their response [Doc. # 12].
“The burden of establishing federal subject matter jurisdiction falls on the party invoking
removal.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir.
2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). There is a “strong
presumption against removal jurisdiction,” and courts must reject it “if there is any doubt as to
the right of removal in the first instance.” Geographic Expeditions, Inc. v. Estate of Lhotka ex
rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir. 1992) (per curiam)) (internal quotation marks omitted).
The Pages removed this action on the basis of federal question jurisdiction. See 28
U.S.C. §§ 1331, 1441. All of Plaintiffs’ causes of action, however, arise under state law. The
Pages nonetheless assert that the complaint raises a substantial federal question because it
concerns an agreement to sell a Federal Communications Commission (“FCC”) television
broadcast license. (Notice of Removal [Doc. #1] ¶¶ 6-9.)
According to the complaint, Defendant Kevin Page represented to Plaintiff Jose Aquino
that Defendant KZSW Television, Inc. possessed a valuable FCC license. (Compl. ¶ 23.)
Approximately two years later, the Pages and KZSW allegedly entered into a stock purchase
agreement with Aquino and Plaintiff NewsNet, LLC for the sale of the FCC license, facilitated
by a $615,000 promissory note. (Id. ¶¶ 24-25.) Plaintiffs claim that they paid more than
$450,000 but that the Page Defendants failed to transfer control of the FCC license in violation
of the stock purchase agreement. (Id. ¶¶ 31, 33.) Plaintiffs raise claims for breach of oral and
written contract, intentional misrepresentation, unjust enrichment, money had and received,
CV-90
CIVIL MINUTES—GENERAL
Initials of Deputy Clerk vv
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
EDCV 11-01295 DMG (DTBx)
Title Jose Aquino, et al. v. Victor Page, et al.
Date
September 29, 2011
Page
2 of 2
unfair business practices, Cal. Bus. & Prof. Code § 17200, conspiracy to commit fraud, and
specific performance.
Under 28 U.S.C. § 1331, district courts have original jurisdiction over “all civil actions
arising under the Constitution, laws, or treaties of the United States.” A case “arises under”
federal law within the meaning of Section 1331 “if a well-pleaded complaint establishes either
that federal law creates the cause of action or that the plaintiff’s right to relief necessarily
depends on resolution of a substantial question of federal law.” Proctor v. Vishay
Intertechnology Inc., 584 F.3d 1208, 1219 (9th Cir. 2009) (quoting Empire Healthchoice
Assurance, Inc. v. McVeigh, 547 U.S. 677, 689-90, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006))
(internal quotation marks omitted).
In their response to the OSC, the Pages assert that a federal question exists because the
transferability of a FCC television broadcast license is within the FCC’s exclusive domain under
the Communications Act of 1934, 47 U.S.C. § 151 et seq. (Resp. at 7.) In particular, the Act
states that “[n]o . . . station license, or any rights thereunder, shall be transferred, assigned, or
disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of
control of any corporation holding such permit or license, to any person except upon application
to the Commission and upon finding by the Commission that the public interest, convenience,
and necessity will be served thereby. 47 U.S.C. § 310(d).
While true, the Pages’ contention is beside the point. None of Plaintiffs’ causes of action
depends on the resolution of a substantial question involving the Communications Act. Plaintiffs
do not challenge the FCC’s failure to approve a change in station ownership. Rather, they allege
that Defendants failed “to initiate the necessary filings with the FCC for notification and
approval of this transaction.” (Compl. ¶ 36.) Thus, the complaint raises no federal question. See
D.B. Zwirn Special Opportunities Fund, L.P. v. Tama Broad., Inc., 550 F. Supp. 2d 481, 488
(S.D.N.Y. 2008) (“Plaintiff’s invocation of the requirement of FCC approval does not, standing
alone, convert its breach of contract claim into one that ‘arises under’ the Communications
Act.”); cf. Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 982, 985 (9th Cir. 2003)
(“[I]t is well established that just because a case involves a copyright does not mean that federal
subject matter jurisdiction exists.” (citing Vestron, Inc. v. Home Box Office Inc., 839 F.2d 1380,
1381 (9th Cir. 1988))).
As this litigation involves no federal question, the Court lacks subject matter jurisdiction.
Therefore, this action is hereby REMANDED to Riverside County Superior Court.
IT IS SO ORDERED.
CV-90
CIVIL MINUTES—GENERAL
Initials of Deputy Clerk vv
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