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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SHELLY ROBINSON,

Plaintiff,

v.

SHEILA SHEREE HARRISON,

Defendant.

Case No. 16-cv-07104-MEJ 

ORDER FOR CLERK OF COURT TO 

REASSIGN CASE

REPORT & RECOMMENDATION

INTRODUCTION

On December 13, 2016, Defendant Sheila Sheree Harrison (“Defendant”) removed this 

unlawful detainer action from Alameda County Superior Court. Not. of Removal, Dkt. No. 1. 

However, as it appears that jurisdiction is lacking, this case should be remanded to state court. As 

Defendant did not consent to magistrate judge jurisdiction within the deadline for doing so, the 

Court ORDERS the Clerk of Court to reassign this case to a District Judge with the 

RECOMMENDATION the case be REMANDED to Alameda County Superior Court. 

LEGAL STANDARD

Subject matter jurisdiction is fundamental and cannot be waived. Billingsley v. C.I.R., 868 

F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those cases which the 

Constitution and Congress authorize them to adjudicate, i.e., those involving diversity of 

citizenship or a federal question, or those to which the United States is a party. Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Chen-Cheng Wang ex rel. 

United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (federal courts have no power to 

consider claims for which they lack subject-matter jurisdiction).

Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the 

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United States District Court

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district courts of the United States have original jurisdiction, may be removed by the defendant or 

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

place where such action is pending.” However, the removal statutes are construed restrictively so 

as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 

(1941); see also Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)

(“Where doubt regarding the right to removal exists, a case should be remanded to state court.”). 

The burden of establishing federal jurisdiction for purposes of removal is on the party seeking 

removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The district court must 

remand the case if it appears before final judgment that the court lacks subject matter jurisdiction. 

28 U.S.C. § 1447(c); Abada v. Charles Schwab & Co., 300 F.3d 1112, 1118 n.2 (9th Cir. 2002).

Subject matter jurisdiction is determined from the face of the complaint. Rivet v. Regions 

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

(1987) (federal question must be presented on face of plaintiff’s properly pleaded complaint); Fifty 

Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90 (9th Cir. 1970) (existence of 

diversity jurisdiction must be sufficient on the face of the complaint). Jurisdiction may not be 

based on a claim raised as a defense or a counterclaim. K2 Am. Corp. v. Roland Oil & Gas, LLC, 

653 F.3d 1024, 1029 (9th Cir. 2011).

DISCUSSION

Here, the face of the complaint, which asserts only one state law claim for unlawful 

detainer, does not provide any ground for removal. See Not. of Removal, Ex. A (Complaint—

Unlawful Detainer). “An unlawful detainer action, on its face, does not arise under federal law but 

is purely a creature of California law.” Snavely v. Johnson, 2015 WL 5242925, at *2 (N.D. Cal. 

Sept. 8, 2015) (citations omitted); HSBC Bank USA N.A. v. Serrato, 2013 WL 3337813, at *2 

(N.D. Cal. July 1, 2013). 1

Plaintiff argues that federal question jurisdiction exists because her answer “depend[s] on 

the determination of Defendant’s rights and Plaintiff’s duties under federal law.” Not. of Removal 

 

1 Defendant does not appear to invoke diversity of citizenship as a basis for jurisdiction. See Not. 

of Removal at 2 (invoking only 28 U.S.C. § 1331—Federal Question as the basis for removal).

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¶ 10. But an anticipated federal defense or counterclaim is not sufficient to confer jurisdiction. 

See Holmes Group v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002); Franchise Tax 

Bd. of Ca. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 10 (1983). “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.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality of the 

State of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000) (quotation omitted); see also Valles v. Ivy Hill 

Corp., 410 F.3d 1071, 1075 (9th Cir. 2005) (“A federal law defense to a state-law claim does not 

confer jurisdiction on a federal court, even if the defense is that of federal preemption and is 

anticipated in the plaintiff’s complaint.” (citation omitted)). Removal is therefore improper. See,

e.g., Nguyen v. Bui, 2012 WL 762156, at *2 (N.D. Cal. Feb. 21, 2012) (holding that affirmative 

defenses based upon Federal Truth in Lending Act and Real Estate Settlement Procedures Act do 

not confer federal jurisdiction upon state unlawful detainer claim); Aurora Loan Serv., LLC v. 

Martinez, 2010 WL 1266887, at * 1 (N.D. Cal. Mar. 29, 2010) (answer asserting plaintiff violated 

the Protecting Tenants at Foreclosure Act does not confer federal jurisdiction over unlawful 

detainer claim).

CONCLUSION

As jurisdiction appears to be lacking, the undersigned hereby RECOMMENDS that this 

case be remanded to Alameda County Superior Court. The Clerk of Court shall reassign this case 

to a District Judge.

Pursuant to Federal Rule of Civil Procedure 72, any party may serve and file objections to

this report and recommendation within 14 days after being served with a copy.

IT IS SO ORDERED AND RECOMMENDED.

Dated: January 5, 2017

______________________________________

MARIA-ELENA JAMES

United States Magistrate Judge

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