ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS

Re: Dkt. No. 2

HAYWOOD S. GILLIAM, JR., District Judge.

Defendant James Blocho, proceeding pro se, has removed this action from the Superior Court of Santa Clara County. Dkt. No. 1 at 1-6 ("Notice").1 He seeks leave to proceed in forma pauperis. Dkt. No. 2.

The Court may authorize the commencement of a civil action in forma pauperis if it is satisfied that the would-be litigant cannot pay the filing fees necessary to pursue the action and that his action is not frivolous or malicious. 28 U.S.C. § 1915(a)(1); Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). Having reviewed Defendant's application, the Court finds that he is unable to pay the full amount of fees, costs, or give security. See Escobedo, 787 F.3d at 1234 ("An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life."). Nevertheless, the Court finds that it lacks subject matter jurisdiction and accordingly DENIES the motion to proceed in forma pauperis and remands the case.

I. DISCUSSION

Section 1915(e)(2) mandates that the Court review an in forma pauperis complaint before directing the United States Marshal to serve the complaint. Escobedo, 787 F.3d at 1234 & n.7. Further, under this section, "the Court is required to dismiss an in forma pauperis complaint that lacks subject matter jurisdiction." Dallin, LLC v. Lyles, No. 17-cv-02618-SK, 2017 WL 2888580, at *1 (N.D. Cal. May 24, 2017) (citing Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987)); see also MSB Homes LLC v. Williams, No. 17-cv-06830-SVK, 2017 WL 6883891, at *1 (N.D. Cal. Dec. 7, 2017) (citing Dallin for the proposition that courts "screen actions removed to this court [under section 1915] when a party seeks to proceed in forma pauperis to determine whether removal was obviously improper"). "Even aside from section 1915 review, the Court has an independent duty to ascertain its jurisdiction and may remand a case sua sponte for lack of subject matter jurisdiction." Dallin, 2017 WL 2888580, at *1 (citations omitted). In cases involving removal, courts "strictly construe the removal statute against removal jurisdiction," and reject such jurisdiction "if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "[T]he burden of establishing federal removal jurisdiction for purposes of removal is on the party seeking removal." Dallin, 2017 WL 2888580, at *1 (citing Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004)).

On May 4, 2018, Plaintiff Comeragh LLC filed a complaint in state court alleging a cause of action for unlawful detainer against Defendant. See Dkt. No. 1 at 8-33 (Complaint or "Compl.") (ECF pagination). Plaintiff alleges that Defendant "was provided occupancy" of the premises in question as part of an employment agreement. See Compl. ¶ IV. After Defendant's employment terminated, Plaintiff served a notice requiring Defendant to "deliver up possession of said premises within three days of the date of service of said notice." Id. ¶ V. As relief, Plaintiff sought possession of the premises, forfeiture of the lease, damages, attorney's fees, and costs. Id. ¶ VIII.

Defendant filed a notice of removal on July 2, 2018, alleging that this Court has subject matter jurisdiction pursuant to 18 U.S.C. § 1341, which deals with criminal mail fraud, and 18 U.S.C. § 1961(1)(B), a provision in the "Definitions" section of the criminal Racketeer Influenced and Corrupt Organizations ("RICO") statute. See Notice ¶ 8. Defendant also contends that this Court has federal question jurisdiction over the matter because "the action below expressly claims an employment contract with Defendants and the matter therefore clearly falls under the authority of the `Fair Labor Standards Act of 1938' and `National Labor Relations Act.'" Id. ¶ 9. As support, he cites several sections of Title 29 of the U.S. Code: sections 8(a)(3) and 218(c), which do not exist; section 201, which designates that chapter's short title as the "Fair Labor Standards Act of 1938,"; and section 158(a)(3), which deems certain labor discrimination to be an "unfair labor practice." See Notice ¶ 9.

The exercise of federal question jurisdiction is appropriate where "a well-pleaded 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. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28 (1983). Here, federal law does not create the cause of action, as an unlawful detainer action "is purely a creature of California law." See Dallin, 2017 WL 2888580, at *2; see also MSB Homes, 2017 WL 6883891, at *2 ("The state court complaint in this case, however, presents a claim for unlawful detainer; it does not allege a federal claim or require resolution of a substantial question of federal law."). Nor is there any indication that Plaintiff's claim necessarily depends on the resolution of a substantial question of federal law: to the extent Defendant claims that this Court has subject matter jurisdiction due to certain federal criminal or labor statutes, the allegations in the Complaint do not support that assertion. Rather, the Complaint evinces only one type of action: an unlawful detainer, brought by Plaintiff to regain possession of certain property. See Compl. ¶¶ VI, VIII. Moreover, even if Defendant were to "state defenses and counterclaims asserting a federal question, defenses and counterclaims do not satisfy the requirement that the case `arise under' federal law." See MSB Homes, 2017 WL 6883891, at *2 (citing Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831-32 (2002)).2 Accordingly, Defendant has failed to satisfy his burden with respect to removal jurisdiction.

II. CONCLUSION

The Court DENIES Defendant's motion, as the Court lacks subject matter jurisdiction over the underlying action.3 Defendant's Ex Parte Application for Order Setting Aside Judgment and for Order Recalling Writ of Possession, Dkt. No. 10, is terminated as moot. The Clerk is directed to remand the case forthwith to the Superior Court of Santa Clara County and close the case.

IT IS SO ORDERED.