COLFIN A1-CA4 LLC v. Scott Aaron Clark et al
Filing
9
MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court GRANTS Plaintiff's Ex Parte Application to remand this case to the Riverside County Superior Court, Case No. MVC 1301318 8 . ( MD JS-6. Case Terminated. ) Court Reporter: Not Present. (Attachments: # 1 CV-103 Remand Transmittal Letter) (gk)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
JS-6
Case No.
EDCV 13-1162-CAS (SPx)
Title
COLFIN A1-CA4 LLC V. SCOTT AARON CLARK, ET AL.
Present: The Honorable
Date
August 1, 2013
CHRISTINA A. SNYDER
Catherine Jeang
Deputy Clerk
Not present
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants
Not present
Not present
Proceedings:
I.
(In Chambers:) PLAINTIFF’S EX PARTE APPLICATION
TO REMAND (filed July 22, 2013) [8]
INTRODUCTION
On March 25, 2013, plaintiff Colfin AI-CA4, LLC, filed a complaint for unlawful
detainer in the Riverside County Superior Court against defendants Scott Aaron Clark,
Karen Clark and Does 1 to 5. Plaintiff seeks possession of real property located at 3180
Gunsmoke Road, Corona, California, which it alleges that it purchased at a trustee’s sale.
The property was formerly owned by defendants.
On June 28, 2013, defendant Scott Aaron Clark filed a notice of removal to this
Court pursuant to 28 U.S.C. §§ 1443 and 1446. Dkt. No. 1. Defendant contends that this
court has jurisdiction over the instant case because the unlawful detainer proceedings in
state court have deprived defendants of their constitutional due process rights. In
addition, defendant asserts that various federal statutes must be considered and construed
in this litigation, which also give rise to federal jurisdiction.
On July 22, 2013, plaintiff filed an ex parte application to remand this case to state
court. Dkt. No. 8. To date, to opposition has been filed.
II.
ANALYSIS
As an initial matter, the Court finds that the notice of removal is untimely. Pursuant
to 28 U.S.C. §1446(b), a notice of removal in a civil action must be filed within thirty
days after the defendant receives a copy of the complaint or summons. Here, the
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CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
JS-6
Case No.
EDCV 13-1162-CAS (SPx)
Date
August 1, 2013
Title
COLFIN A1-CA4 LLC V. SCOTT AARON CLARK, ET AL.
action was filed on March 25, 2013, yet defendant did not remove until June 28, 2013.
For this reason alone, remand is appropriate.
The Court also concludes that it lacks subject matter jurisdiction over this case and
therefore must remand. First, cases raising a question “arising under the Constitution,
laws, or treaties of the United States” may be removed to federal court. 28 U.S.C. §
1331. Whether a case arises under federal law is generally determined by the wellpleaded complaint rule: “a right or immunity created by the Constitution or laws of the
United States must be an element, and an essential one, of the plaintiff’s cause of action.”
California Shock Trauma Air Rescue v. State Comp. Ins. Fund, 636 F.3d 538, 541 (9th
Cir. 2011) (citations omitted). A defendant’s attempt at creating federal subject matter
jurisdiction by adding claims or defenses to a notice of removal must fail. McAtee v.
Capital One, F.S.B., 479 F.3d 1143, 1145 (9th Cir. 2007).
Here, the complaint asserts only a single state law claim for unlawful detainer,
which does not give rise to a federal question. See Dkt. No. 1. Deutsche Bank Nat’l Trust
Co. v. Leonardo, 2011 U.S. Dist. LEXIS 83854, *2 (C.D. Cal. Aug. 1, 2011) (“[T]he
complaint only asserts a claim for unlawful detainer, a cause of action that is purely a
matter of state law.”). Defendant cannot create federal subject matter jurisdiction by
attempting to raise a defense or a counterclaim under the federal constitution or other
body of federal law. See McAtee, 479 F.3d at 1145. Simply put, “[a] federal defense or
counter-claim does not give rise to federal-question jurisdiction.” Franchise Tax Bd. v.
Constr. Laborers Vacation Trust for s. Cal., 463 U.S. 1, 14 (1983). Accordingly, the
Court lacks subject matter jurisdiction based on a federal question. Suarez, 2011 U.S.
Dist. LEXIS 82300 at *6.
Second, removal pursuant to 28 U.S.C. § 1443 is also improper. To remove this
case pursuant to 28 U.S.C. § 1443, petitioner must satisfy a two-part test. See Georgia v.
Rachel, 384 U.S. 780, 788–92, 794–804 (1966); City of Greenwood, Miss. v. Peacock,
384 U.S. 808, 824–28 (1966). Petitioners must demonstrate that: (1) as a defense to a
civil action or prosecution, they have asserted “rights that are given to them by explicit
statutory enactment protecting equal racial civil rights”; and (2) “that the state court
upholds a statute or constitutional provision that orders the state court not to enforce
those federally protected civil rights.” California v. Sandoval, 434 F.2d 635, 636 (9th
Cir. 1970). Defendant has not identified a relevant California statute that would preclude
him from asserting any of his federal civil rights. Although defendant claims that the
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CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
JS-6
Case No.
EDCV 13-1162-CAS (SPx)
Date
August 1, 2013
Title
COLFIN A1-CA4 LLC V. SCOTT AARON CLARK, ET AL.
California Civil Code procedures providing for non-judicial foreclosures and summary
eviction proceedings denies him equal protection, defendant fails to identify any federal
statutory enactment protecting equal racial civil rights that California courts are refusing
to enforce. Therefore, defendant is unable to satisfy the two-part Sandoval test, and
removal pursuant to 28 U.S.C. § 1443 is improper. See Union Bank v. Lebow, 2012 U.S.
Dist. LEXIS 60152, *3–4 (C.D. Cal. Apr. 27, 2012).
III.
CONCLUSION
In accordance with the foregoing, the Court GRANTS plaintiff’s application to
remand this case to the Riverside County Superior Court.
IT IS SO ORDERED.
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Initials of Preparer
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CMJ
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