Opinion
No. C02-2414L
January 29, 2003
ORDER TO SHOW CAUSE
This matter comes before the Court on defendants' "Notice of Removal From Superior Court in and for King County." The underlying matter was filed in state court by plaintiff, a landlord, in an attempt to evict defendants from his property. On or about November 27, 2002, defendants asserted a counterclaim under the federal Fair Housing Act. Defendants removed the action to federal court on December 30, 2002. Plaintiff has filed a motion to remand which is noted on the Court's calendar for consideration on February 14, 2003.
Generally, a defendant in state court has the right to remove the case to federal court if the case could have been filed originally in federal court ( i.e., on federal diversity or federal question grounds). See 28 U.S.C. § 1441(b). The burden of establishing federal jurisdiction is on the removing party. Hunter v. United Van Lines, 746 F.2d 635, 639 (9th Cir. 1984), cert. denied, 474 U.S. 863 (1985). The removal statutes are strictly construed against removal. Redwood Theatres, Inc. v. Festival Enterprises, Inc., 908 F.2d 477, 479 (9th Cir. 1990).
This Court has original jurisdiction over any civil action arising under federal law, including the Fair Housing Act. An action is said to "arise under" federal law if the law creates the cause of action or if a right or immunity created by the law is an essential element of plaintiff's cause of action. See, e.g., Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-11 (1983). The analysis focuses on plaintiff's complaint, not defendants' answer. Under the "well-pleaded complaint" rule, plaintiff is the "master of the complaint" and has the option of avoiding removal by alleging only state law claims while ignoring available federal claims. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, n. 7 (1987); Hunter, 746 F.2d at 641. Because removability depends on the content of the complaint, a defendant cannot create removability by pleading a defense or counterclaim which presents a federal question. Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998); Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985).
Plaintiff's complaint apparently raises only state law causes of action: the federal issue was injected into this litigation by defendant as a counterclaim. "For heifer or for worse, under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case `arises under' federal law." Franchise Tax Board, 463 U.S. at 10 (emphasis in original). Defendants are therefore ORDERED to show cause why the above-captioned matter should not be remanded to state court with an award of just costs and actual expenses, including attorney's fees, incurred as a result of the removal. In their response to plaintiff's motion to remand (which challenges defendants' removal as untimely), defendants shall also answer the following questions:
(1) Is there any ground for federal jurisdiction in plaintiff's complaint?
(2) Do any of the exceptions to the well-pleaded complaint rule apply?
(3) Should costs and expenses be awarded pursuant to 28 U.S.C. § 1447(c)?
(4) Is counsel admitted to practice before this Court as required by Local General Rule 21.
Defendants' response to plaintiff's motion and this Order to Show Cause must be filed and served no later than 4:30 p.m. on Monday, February 10, 2003. Plaintiffs shall file and serve their reply, if any, by 4:30 p.m on Thursday, February 13, 2003.