UNITED STATES DISTRICT COURT JS-6 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-8864 FMO (FFMx) Date October 28, 2019 Title Virginia Murguia v. Jacquelyn Hernandez, et al.

Present: The Honorable Fernando M. Olguin, United States District Judge Cheryl Wynn None None Deputy Clerk Court Reporter / Recorder Tape No. Attorney Present for Plaintiff: Attorney Present for Defendants: None Present None Present Proceedings: (In Chambers) Order Remanding Action On October 13, 2018, plaintiff Virginia Murguia (“plaintiff filed a Verified Complaint in the Los Angeles County Superior Court against Jacquelyn Hernandez (“Hernandez”), Craig Darling (“Darling”) and Law Office of Craig A. Darling (“Law Office”) asserting state-law claims. (See Dkt. 1, Notice of Removal (“NOR”) at ECF 11-27 (Complaint)). On October 18, 2019, Hernandez removed the action on federal question and diversity jurisdiction grounds pursuant to

and 1332. (See Dkt. 1, NOR). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am.,

,

(1994). The courts are presumed to lack jurisdiction unless the contrary appears affirmatively from the record. See DaimlerChrysler Corp. v. Cuno,

, 342 n. 3,

(2006). Federal courts have a duty to examine jurisdiction sua sponte before proceeding to the merits of a case, see Ruhrgas AG v. Marathon Oil Co.,

,

(1999), “even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp.,

,

(2006). “The right of removal is entirely a creature of statute and a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress.” Syngenta Crop Protection, Inc. v. Henson,

,

(2002) (internal quotation marks omitted). Where Congress has acted to create a right of removal, those statutes, unless otherwise stated, are strictly construed against removal jurisdiction. See

Unless otherwise expressly provided by Congress, “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 the defendants, to the district court[.]”

(a); see Dennis v. Hart,

(9th Cir. 2013) (same). A removing defendant bears the burden of establishing that removal is proper. See Abrego Abrego v. The Dow Chem. Co.,

(9th Cir. 2006) (per curiam) (noting the “longstanding, near-canonical rule that the burden on removal rests with the removing defendant”); Gaus v. Miles, Inc.,

(9th Cir. 1992) (“The strong presumption against removal jurisdiction means that the defendant always has the burden of actaohliching that ramoval ic nrgoner ”) (intarnal quaotatinn marks qmittad) Moreover rf there ic any

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-8864 FMO (FFMx) Date October 28, 2019 Title Virginia Murguia v. Jacquelyn Hernandez, et al. doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding the action to state court. See Gaus,

(“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”). “Under the plain terms of § 1441(a), in order properly to remove [an] action pursuant to that provision, [the removing defendants] must demonstrate that original subject-matter jurisdiction lies in the federal courts.” Syngenta Crop Protection,

,

. Failure to do so requires that the case be remanded, as “[s]ubject matter jurisdiction may not be waived, and. the district court must remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass'n, Inc. v. Homestead Ins. Co.,

(9th Cir. 2003). Indeed, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”

(c); see Emrich v. Touche Ross & Co.,

, 1194 n. 2 (9th Cir. 1988) (“It is elementary that the subject matter jurisdiction of the district court is not a waivable matter and may be raised at anytime by one of the parties, by motion or in the responsive pleadings, or sua sponte by the trial or reviewing court.”); Washington v. United Parcel Serv., Inc.,

, *1 (C.D. Cal. 2009) (a district court may remand an action where the court finds that it lacks subject matter jurisdiction either by motion or sua sponte). The court’s review of the NOR and the attached state court Complaint makes clear that this court does not have subject matter jurisdiction over the instant matter. In other words, plaintiff could not have originally brought this action in federal court on the basis of diversity jurisdiction or federal question jurisdiction. Therefore, removal was improper. See

(a); Caterpillar, Inc. v. Williams,

,

(1987) (“Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.”) (footnote omitted). For purposes of removal based on federal question jurisdiction, the well-pleaded complaint rule “provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Smallwood v. Allied Van Lines, Inc.,

(9th Cir. 2011) (quoting Caterpillar,

,

). “As the master of the complaint, a plaintiff may defeat removal by choosing not to plead independent federal claims.” ARCO Envt'l Remediation, L.L.C. v. Dep't of Health & Envt'l Quality of Montana,

(9th Cir. 2000). Here, the state-court complaint discloses no federal statutory or constitutional question that would support federal question jurisdiction. (See, generally, Dkt. 1 (Complaint). Although Hernandez’s Notice of Removal is difficult to follow, it appears that she relies on purported constitutional defenses as the basis for federal question jurisdiction. (See Dkt. NOR at 73). However, it is well-settled that 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 concede that the federal defense is the only question truly at issue.” Caterpillar,

,

; see also Franchise Tax Bd. of the State of California v. Construction Laborers Vacation Trust for Southern California.

. 27-28 103 S Ct. 2841.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-8864 FMO (FFMx) Date October 28, 2019 Title Virginia Murguia v. Jacquelyn Hernandez, et al. 2856 (1983), superseded by statute on other grounds, as recognized in DB Healthcare, LLC v. Blue Cross Blue Shield of Arizona, Inc.,

(9th Cir. 2017) (“Congress has given the lower federal courts jurisdiction to hear, originally or by removal from state court, only those cases in which 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.”). Although unclear, to the extent Hernandez is attempting to invoke the court’s diversity jurisdiction, (see Dkt. 1, NOR at p. 5), it too fails. When federal subject matter jurisdiction is predicated on diversity of citizenship, see 28 U.S.C. 1332(a), complete diversity must exist between the opposing parties. See Caterpillar Inc. v. Lewis,

,

(1996) (stating that the diversity jurisdiction statute “applies only to cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant”). Here, Hernandez has failed to establish complete diversity of citizenship. (See, generally, Dkt. 1, NOR). Moreover, the Complaint indicates that all parties are citizens of California. (See Dkt 1, Complaint). In short, given that any doubt regarding the existence of subject matter jurisdiction must be resolved in favor of remanding the action to state court, see Gaus,

, the court is not persuaded, under the circumstances here, that Hernandez has met her burden. Therefore, there is no basis for federal question jurisdiction. See

. This order is not intended for publication. Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. CONCLUSION Based on the foregoing, IT IS ORDERED that: 1. The above-captioned action shall be remanded to the Superior Court of the State of California for the County of Los Angeles, 111 N. Hill Street, Los Angeles, CA 90012, for lack of subject matter jurisdiction pursuant to

(c). 2. The Clerk shall send a certified copy of this Order to the state court.

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