United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Magistrate Judge Mary Alice
Theiler's report and recommendation (Dkt. No. 5) and
Defendant Susan M. Hazard's (“Hazard”)
objections (Dkt. No. 6). On February 12, 2018, Defendants
Hazard and Cecile T. Freeman (“Freeman”) filed a
notice of removal in this unlawful detainer action filed by
Plaintiff Avanath Federal Way, LLC (“Avanath”) in
King County Superior Court. (Dkt. Nos. 1-1, 1-2.) Defendants
contemporaneously filed a motion to proceed in forma
pauperis (“IFP”). (Dkt. No. 1.) Judge
Theiler was unable to rule on the IFP issue because only
Hazard submitted an IFP application. (Dkt. No. 4.) Judge
Theiler directed Freeman to file an IFP application or pay
the filing fee within 21 days. (Id.) Neither Freeman
nor Hazard responded.
Theiler subsequently submitted a report and recommendation
that recommends the Court deny Defendants' motion to
proceed IFP. (Dkt. No. 5.) Hazard filed an objection to the
report and recommendation, stating that Freeman-who is her
mother-did not file an IFP application because she passed
away. (Dkt. No. 6.) Hazard also requested that Freeman be
terminated from this lawsuit. (Id.)
on Hazard's representations, the Court declines to adopt
Judge Theiler's report and recommendation (Dkt. No. 5.)
Having reviewed Hazard's IFP application, the Court
determines that she qualifies financially for IFP status.
(See Dkt. No. 1). Therefore, the Court GRANTS
Hazard's motion to proceed IFP (Dkt. No.
The Clerk and parties are DIRECTED to caption future filings
as: Avanath Federal Way, LLC v. Susan M. Hazard.
reviewed Hazard's notice of removal and Avanath's
complaint, the Court is skeptical that it has subject matter
jurisdiction over this case. (Dkt. Nos. 1-1, 1-2.) If a
district court “determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P. 12(h)(3). Pursuant to Rule
12(h)(3), “a court may raise the question of subject
matter jurisdiction, sua sponte, at any time during
the pendency of the action . . . .” Snell v.
Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002).
removal jurisdiction is limited to civil actions
“brought in a State court of which the district courts
of the United States have original jurisdiction.” 28
U.S.C. § 1441. The “burden of establishing federal
jurisdiction is on the party seeking removal, and the removal
statute is strictly construed against removal
jurisdiction.” Prize Frize, Inc. v. Matrix
Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). Under
federal-question jurisdiction, a defendant may remove any
“civil action [ ] arising under the Constitution,
treaties or laws of the United States.” 28 U.S.C.
§ 1331. Under diversity jurisdiction, a defendant may
remove a case where the amount in controversy exceeds $75,
000 and the parties are citizens of different states. 28
U.S.C. § 1332.
alleges a single claim of unlawful detainer in its complaint.
(See Dkt. No. 1-2.) That cause of action is based on
state, not federal law. (See id.) The record also
suggests that both parties are citizens of Washington State.
(See Dkt. Nos. 1-1, 1-2.) It appears from
Hazard's removal petition that she wants to assert a
federal discrimination claim against Avanath. (See
Dkt. No. 1-1.) However, it is well established that
“federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” California v. United
States, 215 F.3d 1005, 1014 (9th Cir. 2000). The Supreme
Court has made clear that a defendant cannot create subject
matter jurisdiction through the assertion of a defense or
counterclaim where jurisdiction would otherwise be lacking.
See Caterpillar, Inc., v. Williams, 482 U.S. 386,
392 (1987) (defense); Holmes Group, Inc., v. Vornado Air
Circulation Systems, Inc., 535 U.S. 826, 832 (2002)
(counterclaim). Based on the record, it does not appear that
the Court would have federal question or diversity
jurisdiction over this case.
21 days of the issuance of this order, Hazard is ORDERED to
show cause why this case should not be remanded to King
County Superior Court for lack of subject matter
jurisdiction. Hazard shall file a response with the Court
that lists the facts and law that demonstrate that this Court
has either federal question or diversity jurisdiction over
this matter. The Clerk is DIRECTED to mail a copy of this
order to Hazard.
 Hazard's initial motion to proceed
IFP was filed under Docket Number 1, but is now contained in
her objections to the report and ...