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United States District Court 

For the Northern District of California 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SADIA GHANI IQBAL, 

Plaintiff, 

v. 

MUHAMMED USMAN AFZAL, 

Defendant. 

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Case No. 09-2528 SC 

ORDER DISMISSING IQBAL'S 

SUIT; REMANDING AFZAL'S 

IMPROPERLY REMOVED SUIT

 Now before the Court is Plaintiff Sadia Ghani Iqbal's 

("Plaintiff" or "Iqbal") Motion for Default Judgment. Docket No. 

39. The Motion has been submitted without a supporting memorandum. 

Defendant Muhammed Usman Afzal ("Defendant" or "Afzal") has filed 

an Objection, Docket No. 40, which this Court finds no need to 

consider. For the reasons stated below, Iqbal's Motion for Default 

Judgment is DENIED. In addition, Iqbal's Complaint is DISMISSED 

for lack of subject matter jurisdiction, and Afzal's state action, 

which was never properly removed to this Court, is REMANDED. 

 This dispute is rooted in a previous marriage between Iqbal 

and Afzal. Iqbal alleges that the marriage was a sham, entered 

into in order to procure a green card for Afzal. Docket No. 1 

("Compl.") ¶ 3. In early 2004, Iqbal was interviewed by USCIS and 

reported the sham marriage. Id. ¶ 19. Immigration proceedings 

were initiated against Afzal (though it is not clear from the 

Complaint whether they were initiated by Iqbal's report, or whether 

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United States District Court

For the Northern District of California 

Iqbal was interviewed in anticipation of the proceedings). Id.

¶ 25. After the two divorced, Afzal entered another marriage with 

a United States citizen, and according to Iqbal, the Immigration 

Court granted him a green card. Id. ¶ 34. Afzal thereafter filed 

an allegedly slanderous suit against Iqbal in state court and 

caused her emotional distress. Id. ¶¶ 35-36. Iqbal then brought 

this suit in the Northern District of California against Afzal, the 

United States Department of Homeland Security, and a number of 

other federal defendants, alleging that Afzal filed his state-court 

complaint because the federal defendants "failed to do their job, 

and they breached their duty of care, and the agencies are liable 

for damages." Id. ¶¶ 37.g, 38.d, 39.d. This Court has already 

dismissed Iqbal's claims against the federal defendants with 

prejudice. Docket No. 31 ("Sept. 30, 2009 Order"). 

 When this Court dismissed Iqbal's claims against the federal 

defendants, it also observed that Plaintiff's three causes of 

action -- for libel and slander, intentional infliction of 

emotional distress, and negligent infliction of emotional distress 

-- raised no federal questions. Sept. 30, 2009 Order at 2. The 

Court invited Afzal, who was the sole remaining defendant, to 

address this issue. Id. Although Afzal apparently declined to do 

so,1 Iqbal filed a brief requesting that this court retain 

jurisdiction, but failing to articulate a proper basis for doing 

so. Docket No. 32 ("Br. re Jurisdiction").2

 Now Iqbal asks this 

 

1

 Afzal has not participated in this lawsuit except to file 

objections to Plaintiff's request for entry of default and motion 

for default judgment. Docket Nos. 21, 40. 

2

 In particular, Iqbal requested that this Court transfer the 

matter to Immigration Court, or retain jurisdiction until the 

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United States District Court

For the Northern District of California 

Court to enter a default judgment against Afzal, but because the 

Court remains unsatisfied that it has any jurisdiction over this 

dispute, it must deny this request. 

 As a court of limited jurisdiction, "[a] federal court is 

presumed to lack jurisdiction in a particular case unless the 

contrary affirmatively appears." Stock West, Inc. v. Confederated 

Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). When the subject 

matter jurisdiction of the Court is called into question, the 

plaintiff bears the burden of establishing the propriety of the 

court's jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of 

Am., 511 U.S. 375, 377 (1994). Here, Iqbal is alleging only runof-the-mill state claims against a party with whom there is no 

diversity, as both Iqbal and Afzal are California residents. 

Compl. ¶¶ 5-6. To the extent that Iqbal is alleging any claims 

against Afzal (which is unclear, as the Complaint suggests that the 

federal defendants were responsible for any injuries suffered by 

Iqbal), these claims do not belong in a federal court, absent a 

basis for supplemental or diversity jurisdiction. Iqbal's 

remaining claims are therefore DISMISSED. Iqbal may not refile 

these claims in federal court, absent a valid basis for federal 

jurisdiction. 

 There is another matter that this Court must address before it 

disposes of this suit entirely. It appears that, on June 12, 2009, 

Iqbal's attorney attempted to remove Afzal's state court action to 

federal district court. He did so not by filing a removal action 

in the Northern District of California, but by simply filing a 

 

Immigration Court reopens the case against Afzal. Br. re 

Jurisdiction at 1.2. 

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United States District Court

For the Northern District of California 

document entitled "Notice of Removal" in Iqbal's preexisting 

federal suit against Afzal (i.e., the suit that is now before the 

Court). Docket No. 4 ("Notice of Removal"). This was improper. 

"A case cannot be removed from state court to become part of an 

already existing federal case." See Gilliam v. Austin, No. 02-

1389, 2002 U.S. Dist. LEXIS 9555, *11 (N.D. Cal. May 13, 2002). 

Iqbal's attorney undertook none of the steps that are required of 

defendants in removal proceedings. See id. ("In this district, the 

local rules applicable to plaintiffs in original proceedings apply 

to removing defendants.") Iqbal never paid any filing fee, even 

though such a fee is explicitly required for removal actions. 28 

U.S.C. 1914(a). The failure of Iqbal's counsel to undertake the 

basic steps necessary to remove Afzal's state action has prevented 

this Court from promptly and timely addressing the matter. As 

another court in this district has noted in a similar situation: 

Because the notice of removal is the means of 

removing a case from state court to federal 

district court, where it is viewed as a "new" 

case and is assigned a "new" case number, a 

document labeled "[] notice of removal" bearing 

an already existing case number would not provide 

notice to the clerk that a defendant intended to 

remove a state court action which had not 

previously been removed. . . . 

Gilliam, 2002 U.S. Dist. LEXIS 9555 at *10. 

 The case that Iqbal attempted to remove, Afzal v. Iqbal, No. 

CIVMSC08-02648 (Cal. Super. Ct. Contra Costa County Ct. filed Oct. 

20, 2008), was therefore never properly removed to this Court. 

Afzal made no attempt to remand the suit, although this Court would 

have promptly remanded it not only because of the obvious 

procedural defects, but because of the clear absence of subject 

matter jurisdiction: Afzal's suit presents no federal questions of 

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United States District Court

For the Northern District of California 

jurisdictional import, and there is no diversity between the 

California residents who were parties to it. See Notice of Removal 

Ex. A ("Afzal Compl."). These failures notwithstanding, the state 

court's electronic docket reflects that Iqbal's attorney filed the 

Notice of Removal in state court.3

 For the state court, the filing 

of such a notice "shall effect removal and the State court shall 

proceed no further unless and until the case is remanded." 28 

U.S.C. § 1446(d). Because jurisdiction should have remained before 

the state court (and arguably never left the state court), this 

Court REMANDS Afzal's claims against Iqbal to the Superior Court of 

California, Contra Costa County. 

 For the reasons stated above, Iqbal's Complaint against Afzal 

is DISMISSED for lack of subject matter jurisdiction. Iqbal's 

Motion for Default Judgment is therefore DENIED. The hearing that 

is scheduled for March 19, 2010 is hereby VACATED. In addition, 

Afzal's suit against Iqbal, originally filed in the matter Afzal v. 

Iqbal, No. CIVMSC08-02648 (Cal. Super. Ct. Contra Costa County Ct. 

filed Oct. 20, 2008), is hereby REMANDED to the Superior Court of 

California, in and for the County of Contra Costa. 

IT IS SO ORDERED. 

Dated: March 15, 2010 

UNITED STATES DISTRICT JUDGE

 

3

 The electronic docket for the state action reflects that the 

action was "REMOVED FROM COURT'S CONTROL DUE TO CV09-2528 SC HAVING 

BEEN FILED/ENTERED INTO." That case number refers to Iqbal's 

separate federal suit, and not to a properly removed and separately 

filed federal corollary to Afzal's state action against Iqbal. 

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