Minkner et al v. JPMorgan Chase Bank, N.A. et al

Filing 26

ORDER denying 20 Plaintiff's Motion for Attorney Fees and Costs. Signed by Judge G Murray Snow on 3/12/10.(LSP)

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WO NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Carl J. Minkner, Jr. And Diane M. Minkner, husband and wife, Plaintiffs, vs. Washington Mutual Bank, N.A. et al. , Defendants.

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No. CV-09-1900-PHX-GMS ORDER

Pending before this Court is Plaintiffs' Motion For Fees and Costs (Dkt. # 20)1 filed pursuant to 28 U.S.C. § 1447(c). For the reasons stated below that Motion is denied. As the Supreme Court recently stated "[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely when an objectively reasonable basis exists, fees should be denied." Martin v. Franklin Capital Corp., 546 U.S. 132, 140-41 (2005). In this case, Plaintiffs filed a lengthy and detailed Complaint. It asserted only three causes of action, the state law claims of (1) breach of contract/injunctive relief, (2) negligent

Although the pleading purports to seek costs, in it the Plaintiffs have only requested attorneys' fees.

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misrepresentation, and, (3), fraudulent concealment. As the Court explained in its previous Order, neither any of these claims, nor the Complaint as a whole, qualifies for the jurisdiction of this Court. Nevertheless, in their Complaint, Plaintiffs allege as an example of fraudulent concealment that some of the Defendants failed to comply with a qualified written request for information pursuant to the Federal Real Estate Settlement Procedures Act, ("RESPA"). See, e.g., Complaint (Dkt. # 1, Ex. 1 at ¶¶ 43-44, 68-69. 146). They allege that this violation of federal law amounts to fraudulent concealment, and they incorporate the allegations concerning that violation in each count of their Complaint. Plaintiffs do not, however, bring a claim for recovery under RESPA. Rather, they assert that this failure to comply with RESPA constitutes fraud under state law. For the reasons previously explained, in the estimation of this Court, this allegation does not constitute a federal claim sufficient to grant this Court jurisdiction. Nevertheless, it does provide the Defendants with an objectively reasonable basis for seeking to invoke federal jurisdiction over the claim. Therefore, for the reasons stated in Martin,, IT IS HEREBY ORDERED denying Plaintiff's Motion for Fees and Costs (Dkt. # 20). DATED this 12th day of March, 2010.

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