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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RPR LARKSPUR OWNER, LLC,

Plaintiff,

v.

DONALD JONES,

Defendant.

Case No. 17-cv-01553-DMR 

SUA SPONTE ORDER RE CASE 

RELATION TO 17-CV-00214 RS, OR IN 

THE ALTERNATIVE, ORDER 

REASSIGNING CASE TO DISTRICT 

JUDGE; REPORT AND 

RECOMMENDATION TO GRANT IFP 

APPLICATION AND REMAND TO 

SUPERIOR COURT OF CALIFORNIA, 

COUNTY OF MARIN

Re: Dkt. Nos. 1, 2

This is Defendant Donald Jones’s second attempt to remove this case from the Superior 

Court of California, County of Marin, where it is pending as a complaint for unlawful detainer 

against Mr. Jones. 

Mr. Jones unsuccessfully attempted to remove this case on January 17, 2017 on the basis 

of federal question jurisdiction, 28 U.S.C. § 1331. See Notice of Removal [Docket No. 1] in RPR 

Larkspur Owner, LLC v. Jones, Case No. 3:17-cv-00214-RS (“Jones I”). The Honorable Richard 

Seeborg remanded the case to Marin County Superior Court on February 22, 2017. See Order 

Adopting Report and Recommendation and Remanding Case (“Order adopting R&R”) [Docket 

No. 11] in Jones I. 

Mr. Jones removed the same case again on March 23, 2017, and also filed an application to 

proceed in forma pauperis (“IFP”). See Notice of Removal [Docket No. 1] in RPR Larkspur 

Owner, LLC v. Jones, Case No. 4:17-cv-01553 (“Jones II”); IFP Application [Docket No. 2]. As 

with Jones I, the Notice of Removal in Jones II states one ground for removal: that the Complaint 

presents a federal question such that the case could have originally been filed in this Court. 

(Notice of Removal ¶¶ 4-7) [Docket No. 1]; see also Notice of Removal in Jones I [Docket No. 1]. 
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The parties have not yet filed a declination or consent to the jurisdiction of a magistrate 

judge pursuant to 28 U.S.C. § 636(c). Since Jones I and the instant action are likely related, the 

undersigned hereby issues a sua sponte order referring this case to Judge Seeborg for a caserelation determination. If Judge Seeborg determines that this case is not related to Jones I, then 

the case should be reassigned to a district judge for final disposition. The undersigned also issues 

this Report and Recommendation, with the recommendation that the IFP application be granted 

and that summary remand be ordered. 

I. IFP APPLICATION

Having evaluated Mr. Jones’s financial affidavit, the undersigned finds that he has satisfied 

the economic eligibility requirement of 28 U.S.C. § 1915(a) and therefore recommends that the 

IFP application be granted. The undersigned next turns to the issue of subject matter jurisdiction.

II. PROCEDURAL DEFECT IN REMOVAL

Pursuant to 28 U.S.C. § 1441, “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 

other defendants, to the district court of the United States for the district and division embracing 

the place where such action is pending.” 28 U.S.C. § 1441(a). “If the district court at any time 

determines that it lacks jurisdiction over the removed action, it must remedy the improvident grant 

of removal by remanding the action to state court.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 

831, 838 (9th Cir.), opinion amended on denial of reh’g, 387 F.3d 966 (9th Cir. 2004) (citing 28 

U.S.C. § 1447). “The removal statute is strictly construed against removal jurisdiction, and the 

burden of establishing federal jurisdiction falls to the party invoking the statute.” Id. “A 

defendant seeking to remove from state to federal court must file a notice of removal within thirty 

days of receiving a copy of the initial pleading.” Destfino v. Reiswig, 630 F.3d 952, 954 (9th Cir. 

2011) (citing 28 U.S.C. § 1446(b)). 

Mr. Jones’s second notice of removal is untimely, as it was filed more 30 days after his

receipt of the initial complaint. See Deutsche Bank Nat. Trust Co. v. Baltazar, No. C 12-2281 

PJH, 2012 WL 2159414, at *2 (N.D. Cal. June 13, 2012). While Mr. Jones does not state when he 

received the initial complaint in his second Notice of Removal, the Marin County Superior Court’s 
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Register of Action shows that the state court ordered service of the complaint and summons by 

posting and mailing on October 27, 2016, and Mr. Jones filed his demurrer on November 8, 2016. 

See Register of Action for RPR Larkspur Owner, LLC v. Jones, Marin County Superior Court 

Case No. CIV 1603823, available at 

http://apps.marincounty.org/BeaconRoa/BeaconROAView.aspx?cvl_case_intrnl_no=195219 (last 

accessed on April 19, 2017). Therefore, at the latest, Mr. Jones received the initial complaint at 

the beginning of November 2016, and should have filed any notice of removal by the beginning of 

December 2016. Mr. Jones did not do so until March 23, 2017. [Docket No. 1]. 

III. FEDERAL QUESTION JURISDICTION

In addition to the procedural defect discussed above, Mr. Jones also has failed to establish 

federal subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and a “federal 

court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively 

appears.” Stock W., Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citations 

omitted). “[T]he presence or absence of federal-question jurisdiction is governed by the ‘wellpleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal 

question is presented on the face of the plaintiff's properly pleaded complaint.” Rivet v. Regions 

Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 

(1987)). That rule applies equally to evaluating the existence of federal questions in cases brought 

initially in federal court and in removed cases. See Holmes Group, Inc. v. Vornado Air 

Circulation Sys., Inc., 535 U.S. 826, 830 n.2 (2002). 

A federal question exists only when it is presented by what is or should have been alleged 

in the complaint. Id. at 830. The implication of a federal question through issues raised by an 

answer or counterclaim does not suffice to establish federal question jurisdiction. Id. at 831; see 

also ARCO Envtl. Remediation, LLC v. Dep't of Health & Envtl. Quality of Mont., 213 F.3d 1108, 

1113 (9th Cir. 2000) (“[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 

admit that the defense is the only question truly at issue in the case.” (citation and internal 

quotation marks omitted) (brackets in original)).
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Here, Mr. Jones asserts that the basis for removal is federal question jurisdiction. (Notice 

of Removal ¶ 4). He argues that a federal question arises out of his response to Plaintiff’s 

unlawful detainer complaint. Mr. Jones contends that he withheld rental payments because 

Plaintiff discriminated against him and his family on the basis of their physical disabilities in 

violation of the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(A) (“FHA”). (Notice of Removal ¶ 5). 

According to Mr. Jones, Plaintiff refused to make reasonable modifications to the property to 

allow Defendant and his family full enjoyment of the property such as ensuring the doors were

sufficiently wide enough to permit passage of handicapped persons in wheelchairs; placing 

environmental controls such as light switches, electrical outlets, and thermostats in accessible 

locations; permitting reinforcements in bathrooms to allow for the later installation of grab bars; 

and providing usable kitchens and bathrooms such that a person in a wheelchair can maneuver in 

the space, in violation of the FHA. (Notice of Removal ¶ 6(A) through (D)). 

The complaint filed in Marin County Superior Court, however, simply alleges a state cause 

of action under unlawful detainer. (Compl., I - X). “It is well established that unlawful detainer 

claims do not arise under federal law and, without more, the court lacks federal-question 

jurisdiction.” Deutsche Bank Nat'l Trust Co. v. Young, No. C-14-3170 EMC, 2014 WL 7336696, 

at *3 (N.D. Cal. Dec. 23, 2014) (collecting cases). Whatever Mr. Jones intends to argue in 

response to the unlawful detainer does not give rise to removal jurisdiction. See Holmes Group, 

535 U.S. at 831; ARCO Envtl. Remediation, LLC, 213 F.3d at 1113; see also Deutsche Bank Nat'l 

Trust Co., 2014 WL 7336696, at *4 (rejecting defendants’ arguments that federal question 

jurisdiction exists based on violations of federal law including the FHA because “[d]efendants’ 

arguments are federal defenses, and federal defenses do not confer jurisdiction” and remanding 

action); Deutsche Bank Nat'l Trust Co. v. Yanez, No. ED-15-CV-02462-VAP-DTBx, 2016 WL 

591752, at *1 (C.D. Cal. Feb. 11, 2016) (explaining that existence of a federal defense such as one 

based on the FHA was an “insufficient basis to invoke federal question jurisdiction under 28 

U.S.C. § 1331, and consequently [could not] support removal” of the action) (citing Caterpillar 

Inc., 482 U.S. at 393). 
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IV. ATTORNEYS’ FEES

Title 28 U.S.C. § 1447(c) provides that “[i]f at any time before final judgment it appears 

that the district court lacks subject matter jurisdiction, the case shall be remanded. An order 

remanding the case may require payment of just costs and any actual expenses, including attorney 

fees, incurred as a result of the removal.” District courts have wide discretion in deciding to 

award fees. Ervin v. Ballard Marine Constr., Inc., No. 16-CV-02931-WHO, 2016 WL 4239710, 

at *4 (N.D. Cal. Aug. 11, 2016) (quoting Moore v. Permanente Med. Grp, Inc., 981 F.2d 443, 447 

(9th Cir. 1992)). “Absent unusual circumstances, courts may award attorney’s fees under 

§ 1447(c) only where the removing party lacked an objectively reasonable basis for seeking 

removal. In determining whether a removing party lacked an “objectively reasonable basis” for 

removal, this court is mindful that “removal is not objectively unreasonable solely because the 

removing party’s arguments lack merit, or else attorney’s fees would always be awarded whenever 

remand is granted.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). In 

Lussier, the Ninth Circuit explained that in determining whether removal was objectively 

unreasonable, a court should determine “whether the relevant case law clearly foreclosed the 

defendant’s basis of removal,” taking into account “clarity of the law at the time of removal.” Id. 

at 1066. 

In Jones I, the magistrate judge found that Mr. Jones’s removal was “objectively 

unreasonable,” but nevertheless declined to award attorneys’ fees because Mr. Jones is indigent 

and unrepresented, there was no indication of a pattern of improper delay, and there was no 

indication that Plaintiff had incurred significant attorneys’ fees as a result of the improper 

removal. See Report and Recommendation (“R&R”) [Docket No. 6] at 3 in Jones I; Order on 

R&R in Jones I. However, the magistrate judge in Jones I “admonishe[d] [Mr.] Jones that further 

frivolous removals may result in sanctions.” See R&R at 3 in Jones I. 

Here, Mr. Jones’s removal on the basis of an anticipated federal defense under the FHA is 

objectively unreasonable, for the reasons discussed herein. The court in Jones I already explained 

that a “federal defense is not a basis for removal.” See R&R at 2 in Jones I. In Jones I, Mr. Jones 

asserted federal question jurisdiction existed on the basis of the Protecting Tenants at Foreclosure 
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United States District Court

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Act (“PTFA”). Id. at 1-2. The court in Jones I remanded the case, explaining that “PTFA does 

not rise to a right of removal in lawful detainer actions because it provides at most a federal 

defense, and a federal defense is not a basis for removal.” See R&R at 2 in Jones I. 

Even so, the undersigned declines to recommend awarding attorneys’ fees at this time. 

Mr. Jones remains indigent and unrepresented. Additionally, it does not appear that Plaintiff has 

spent any significant attorneys’ fees as a result of Mr. Jones’s second improper removal. The 

undersigned, however, warns Mr. Jones that should he attempt to remove this action for a third 

time, it may well be proper to award sanctions against him, and consider whether he should be 

deemed a vexatious litigant. 

V. CONCLUSION

For the reasons stated above, the undersigned issues a sua sponte order referring this case 

to Judge Seeborg for case-relation determination. If Judge Seeborg determines that the case is not 

related to Jones I, the Clerk is directed to reassign this case to a district judge. The undersigned 

also recommends that Mr. Jones’s IFP application be granted and that this action be remanded to 

the Marin County Superior Court. 

Any party may file objections to this report and recommendation with the district judge 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a); 

N.D. Cal. Civ. L.R. 72-2. 

IT IS SO ORDERED.

Dated: April 19, 2017

______________________________________

Donna M. Ryu

United States Magistrate Judge