Opinion
Case No. 20-cv-00932-NC
02-10-2020
SARIA TSENG, Plaintiff, v. JOEY GOGUE, et al., Defendants.
ORDER TO SHOW CAUSE RE: SUBJECT MATTER JURISDICTION
Plaintiff Saria Tseng sued defendants Joey and Miriam Gogue in Santa Clara County Superior Court for unlawful detainer. See Dkt. No. 1. Defendants removed Tseng's lawsuit citing the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601 et seq., as the basis for federal question jurisdiction. In particular, Defendants claim that Tseng violated the FHA by discriminating against them. See Dkt. No. 1 ¶¶ 9-25.
Defendants' notice of removal, however, contains two defects. First, it is well-settled that for removal jurisdiction, the federal question must be presented by the plaintiff's complaint. See Jasper v. Maxim Integrated Prods., Inc., 108 F. Supp. 3d 757, 765 (N.D. Cal. 2015) ("[F]ederal question jurisdiction exists only when 'a federal question is presented on the face of plaintiff's properly pleaded complaint.'") (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). Thus, "removability cannot be created by defendant pleading a counter-claim presenting a federal question." Takeda v. Nw. Nat'l Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985) (quoting Rath Packing Co. v. Becker, 530 F.2d 1295, 1303 (9th Cir. 1975)). Here, Tseng's complaint raises only a state-law unlawful detainer claim. Because Defendants' FCA defenses or counter-claims cannot form the basis of federal question jurisdiction, it is not apparent why this lawsuit belongs in this Court.
Second, "[a]ll defendants must join in a removal petition with the exception of nominal parties." Hewitt v. Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986) (citing 28 U.S.C. § 1446(b)). "A defendant is a nominal party where his role is limited to that of a stakeholder or depositary." Id. at 1233. Although Defendants' removal petition notes that "[a]ll Defendants consent to the removal of this action" (Dkt. No. 1 ¶ 27), two defendants in the state-court lawsuit were not named as parties to this action. See id. at 8. It is unclear whether those two defendants joined Defendants' removal petition.
Thus, removal pursuant to 28 U.S.C. § 1443 appears improper. Accordingly, the Court ORDERS Defendants to show cause in writing by February 24, 2020, why this case should not be remanded to Santa Clara County Superior Court. The Court will not award attorneys' fees and costs in connection with this order. However, the Court alerts all parties that attorneys' fees and costs incurred as a result of this removal can be awarded to Tseng. See 28 U.S.C. § 1447(c).
The Court directs Defendants to the Federal Pro Se Program, which provides free information and limited-scope legal advice to pro se litigants in federal civil cases. The Federal Pro Se Program is located in Room 2070 in the San Jose United States Courthouse, and is available by appointment Monday to Thursday 9:00 a.m.-4:00 p.m. The Program can be reached by calling (408) 297-1480.
IT IS SO ORDERED. Dated: February 10, 2020
/s/_________
NATHANAEL M. COUSINS
United States Magistrate Judge