REFERRAL FOR REASSIGNMENT AND REPORT AND RECOMMENDATION FOR REMAND

Regarding Docket Nos. 1, 2

SALLIE KIM, Magistrate Judge.

On July 26, 2019, Defendant Infinque Jamison, proceeding pro se, removed this action from Contra Costa County Superior Court and filed an application to proceed in forma pauperis ("IFP"). The parties have not consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c), and therefore the Court does not have authority to make a dispositive ruling in this case. Accordingly, the Court orders that this case be REASSIGNED to a district judge. Moreover, for the reasons set forth below, the Court RECOMMENDS that the District Court REMAND this action to state court.

The Court may authorize a plaintiff to file an action in federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a). The Court finds that Defendant has demonstrated an inability to pay the filing fee and, thus, GRANTS the application to proceed in forma pauperis. However, the in forma pauperis statute provides that the Court shall dismiss the case if, inter alia, the Complaint is frivolous or malicious, or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2). Moreover, the Court has an independent duty to ascertain its jurisdiction and may remand a case sua sponte for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Federal courts are courts of limited jurisdiction. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, the burden of establishing federal jurisdiction for purposes of removal is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus, 980 F.2d at 566.

Here, Plaintiff Lorena H. Tan filed an unlawful detainer action against Defendant in state court for eviction. Defendant argued in the notice of removal that the Complaint for unlawful detainer presents federal questions. (Dkt. 1.) However, the Court does not have federal question or diversity jurisdiction over this matter.

"The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule.'" Caterpillar Inc. v. Williams, 482 U.S. 382, 392 (1987). The well-pleaded complaint rule recognizes that the plaintiff is the master of his or her claim. "[H]e or she may avoid federal jurisdiction by exclusive reliance on state law." Id. Thus, under the well-pleaded complaint rule, federal-question jurisdiction arises where the "complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd., 463 U.S. 1, 27-28 (1983).

This is an unlawful detainer action, which is purely a creature of California law. Thus, federal law does not create the cause of action. Wells Fargo Bank v. Lapeen, 2011 WL 2194117, at *3 (N.D. Cal. June 6, 2011); Wescom Credit Union v. Dudley, 2010 WL 4916578, at *2 (C.D. Cal. Nov. 22, 2010). Moreover, the Court concludes that the claim will not necessarily depend upon the resolution of a substantial question of federal law. Furthermore, a court cannot exercise removal jurisdiction on the ground that the complaint gives rise to a potential or an anticipated defense that might raise a federal question, even if the defense is the only question truly at issue in the case. Franchise Tax Board, 463 U.S. at 10, 14; see also Caterpillar, 482 U.S. at 393 ("[I]t is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.") (emphasis in original). Therefore, there is no federal question jurisdiction.

The Court also determines that it does not have diversity jurisdiction over this matter. According to the plain language of the Complaint, the amount in controversy does not exceed the jurisdictional amount of $75,000. "In unlawful detainer actions, the right to possession is contested, not title to the property, and plaintiffs may collect only damages that are incident to that unlawful possession." Federal Home Loan Mortgage Corp. v. Pulido, 2012 WL 540554 (N.D. Cal. Feb. 17, 2012). Here, Plaintiff seeks past due rent of $2,350.00 and daily damages of $78.33 from July 11, 2019 until judgment and filed this action as a "Limited Civil Case" in which the amount demanded does not exceed $10,000. (See Dkt. No. 1.) Where, as here, a plaintiff specifically alleges that the amount in controversy is less than the jurisdictional threshold, a defendant has the burden of showing with legal certainty that the amount in controversy exceeds $75,000. See Lowdermilk v. U.S. Bank National Ass'n, 479 F.3d 994, 1000 (9th Cir. 2007)). Defendant has not done so here.

Diversity jurisdiction is lacking for another independent reason. 28 U.S.C. § 1441(b) prohibits removal where a defendant in the case is a citizen of the state in which the plaintiff originally brought the action. See Spencer v. U.S. Dist. Ct. for Northern Dist. (Altec Indus., Inc.), 393 F.3d 86, 870 (9th Cir. 2004). Once any "local defendant (a citizen of the forum state) has been served, the action cannot be removed by that defendant, or by any other defendant." Republic W. Ins. Co. v. Int'l Ins. Co., 765 F.Supp. 628, 629 (N.D. Cal. 1991). Here, the complaint alleges that Defendant resides at the subject property, located in Contra Costa County, California, and therefore is a citizen of California. (Dkt. No. 1.) Because Defendant is a citizen of California, Defendant is precluded from removing this action on the grounds of diversity. Therefore, the Court lacks subject matter jurisdiction to hear this matter. The Court thus recommends that this action be REMANDED to the Contra Costa County Superior Court. Any party may object to this recommendation within fourteen days of the filing date of this order. See Fed. R. Civ. P. 72(b).

IT IS SO ORDERED.