(PS) Emerson et al v. Mitchell, No. 2:2018cv02200 - Document 8 (E.D. Cal. 2018)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/2/18 VACATING the 10/12/18 hearing on the 4 Motion for Judgment on the Pleadings and RECOMMENDING: the 2 Motion for IFP be denied; this action be summarily remanded to the Yolo County Superior Court; and this case be closed. Referred to Judge Troy L. Nunley. Objections due within 14 days after these findings and recommendations are filed.(Coll, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 KATHLEEN EMERSON; DANIEL R. ENOS, 13 14 15 16 Plaintiffs, No. 2:18-cv-2200 TLN DB PS ORDER AND FINDINGS AND RECOMMENDATIONS v. KRISTA MITCHELL, Defendant. 17 18 On August 13, 2018, defendant Krista Mitchell filed a notice of removal of this action 19 from the Yolo County Superior Court along with a motion to proceed in forma pauperis. (ECF 20 Nos. 1 & 2.) Defendant is proceeding in this action pro se. This matter was referred to the 21 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). The state court 22 action concerns a civil dispute in which plaintiffs are seeking a permanent restraining order 23 against the defendant. (ECF No. 1 at 111.) 24 The court is required to screen actions brought by parties proceeding in forma pauperis. 25 See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en 26 banc). Here, the court lacks subject matter jurisdiction over this action. Accordingly, for the 27 reasons stated below, the undersigned will recommend that this matter be remanded to the Yolo 28 County Superior Court. 1 1 2 I. Plaintiff’s Application to Proceed In Forma Pauperis A determination that a defendant qualifies financially for in forma pauperis status does not 3 complete the inquiry required by the statute. “‘A district court may deny leave to proceed in 4 forma pauperis at the outset if it appears from the face of the proposed complaint that the action is 5 frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) 6 (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see also 7 McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the 8 district court did not abuse its discretion by denying McGee’s request to proceed IFP because it 9 appears from the face of the amended complaint that McGee’s action is frivolous or without 10 merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court 11 to examine any application for leave to proceed in forma pauperis to determine whether the 12 proposed proceeding has merit and if it appears that the proceeding is without merit, the court is 13 bound to deny a motion seeking leave to proceed in forma pauperis.”). 14 The court must dismiss an in forma pauperis case at any time if the allegation of poverty is 15 found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a 16 claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 17 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or 18 in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 19 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous 20 where it is based on an indisputably meritless legal theory or where the factual contentions are 21 clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 22 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 23 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 24 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 25 true the material allegations in the complaint and construes the allegations in the light most 26 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 27 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 28 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 1 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 2 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 3 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 4 The minimum requirements for a civil complaint in federal court are as follows: 5 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. 6 7 8 Fed. R. Civ. P. 8(a). 9 II. 10 Subject Matter Jurisdiction It is well established that the statutes governing removal jurisdiction must be “strictly 11 construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 12 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)); see also Syngenta 13 Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Provincial Gov’t of Martinduque v. Placer 14 Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “Federal jurisdiction must be rejected if there 15 is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 16 566 (9th Cir. 1992). “‘The burden of establishing federal jurisdiction falls on the party invoking 17 removal.’” Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) 18 (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769, 771 (9th Cir. 1986)); see also Provincial 19 Gov’t of Martinduque, 582 F.3d at 1087. Where the district court lacks subject matter 20 jurisdiction over a removed case, “the case shall be remanded.” 28 U.S.C. § 1447(c). 21 Jurisdiction is a threshold inquiry that must precede the adjudication of any case before 22 the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 23 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate 24 only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 25 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are presumed 26 to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 27 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 28 546 (1986)). 3 1 Lack of subject matter jurisdiction may be raised by the court at any time during the 2 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 3 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has 4 subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the 5 obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v. 6 Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court 7 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380. 8 9 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be 10 conferred by federal statutes regulating specific subject matter. “[T]he existence of federal 11 jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to 12 those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 13 1108, 1113 (9th Cir. 2000). 14 District courts have diversity jurisdiction only over “all civil actions where the matter in 15 controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action 16 is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a 17 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are 18 additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different 19 States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be 20 a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss, 21 797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between 22 the parties-each defendant must be a citizen of a different state from each plaintiff.” In re 23 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). 24 Here, it appears that the parties are citizens of the same state—California. (ECF No. 1 at 25 1, 102.) And that the matter in controversy does not exceed $75,000. (Id. at 111.) Thus, 26 diversity jurisdiction is lacking. Moreover, plaintiffs’ claims for relief do not implicate a federal 27 law or statute. Instead, plaintiffs are seeking a civil restraining order pursuant to state law. (Id.) 28 Accordingly, federal question jurisdiction is also lacking. 4 1 Defendant asserts that this matter is being removed pursuant to 28 U.S.C. § 1443(1) and 2 28 U.S.C. § 1455. (Not. Rem. (ECF No. 1) at 1.) 28 U.S.C. § 1455 allows for the removal of a 3 criminal prosecution from a state court under certain circumstances. And 28 U.S.C. § 1443 4 allows for the removal of a state law action when a person is being denied “equal” civil rights and 5 cannot enforce those rights in the state courts. 28 U.S.C. § 1443(1). 6 Removal under § 1443(1) requires a defendant to satisfy a two-part test: (1) defendant 7 “must assert, as a defense to the prosecution, rights that are given to [the defendant] by explicit 8 statutory enactment protecting equal racial civil rights;” and (2) defendant “must assert that the 9 state courts will not enforce that right, and that allegation must be supported by reference to a 10 state statute or a constitutional provision that purports to command the state courts to ignore the 11 federal rights.” Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (internal citation 12 omitted). However, this action is not a criminal action. As noted by defendant, “[t]he case is about 13 14 a temporary restraining order granted” to the plaintiffs. (Not. Rem. (ECF No. 1) at 2.) And 15 defendant’s notice of removal fails to explain how California law commands the state to ignore 16 defendant’s civil rights. See Azam v. U.S. Bank, N.A., 690 Fed. Appx. 484, 486 (9th Cir. 2017) 17 (“Although Azam’s removal petition cites various state laws, it does not and could not explain 18 how those laws commanded the state court to ignore her civil rights. It follows that the 19 bankruptcy court was correct to remand the unlawful detainer action.”). Accordingly, 28 U.S.C. 20 §§ 1443 and 1455 are not applicable here. 21 III. 22 Judgment on The Pleadings On September 11, 2018, defendant filed a motion for judgment on the pleadings. (ECF 23 No. 4.) That motion is noticed for hearing before the undersigned on October 12, 2018. Because 24 the undersigned will recommend that this action be remanded, that hearing will be vacated 25 pending resolution of these findings and recommendations. 26 //// 27 //// 28 //// 5 1 CONCLUSION 2 3 Accordingly, IT IS HEREBY ORDERED that the October 12, 2018 hearing of defendant’s motion for judgment on the pleadings is vacated. 4 IT IS ALSO HEREBY RECOMMENDED that: 5 1. Defendant’s August 13, 2018 motion to proceed in forma pauperis (ECF No. 2) be 6 denied; 7 2. This action be summarily remanded to the Yolo County Superior Court; and 8 3. This case be closed. 9 These findings and recommendations will be submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 11 days after these findings and recommendations are filed, any party may file written objections 12 with the court. A document containing objections should be titled “Objections to Magistrate 13 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 14 within 14 days after service of the objections. The parties are advised that failure to file 15 objections within the specified time may, under certain circumstances, waive the right to appeal 16 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: October 2, 2018 18 19 20 21 22 DLB:6 DB/orders/orders.pro se/emerson2200.removal.den.f&rs 23 24 25 26 27 28 6
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