Wells Fargo Bank, N.A. v. David Martin Jr.

Filing 11

MINUTE ORDER (IN CHAMBERS) by Judge Dolly M. Gee:, ORDER by Judge Dolly M. Gee: Accordingly, the Court REMANDS this action to the County of Los Angeles Superior Court for lack of subject matter jurisdiction. Wells Fargo's pending motion to d ismiss [Doc. # 9] is DENIED without prejudice to renewal upon transfer to state court. The Court VACATES the May 19, 2017 scheduling conference and hearing on the motion to dismiss. IT IS SO ORDERED. (See minutes for further details) remanding case to Los Angeles Superior Court, County of Los Angeles, Case number 16A18298 Case Terminated. Made JS-6, (Made JS-6. Case Terminated.) (yl)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 17-2484 DMG (MRWx)

Title Wells Fargo Bank, N.A. v. David Martin Jr.
Present: The Honorable

JS-6 / REMAND

May 1, 2017
Page

1 of 2

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS - ORDER REMANDING ACTION TO STATE COURT
Plaintiff Wells Fargo Bank, N.A. filed a complaint against Defendant David Martin Jr. in
County of Los Angeles Superior Court alleging state law causes of action and seeking less than
$10,000 in damages. See Amended Removal Notice, Ex. A [Doc. # 4-1 at 10]. Martin
subsequently filed a cross-complaint against Wells Fargo alleging claims based on negligence,
defamation, and violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.
(“Counterclaim”) [Doc. # 4-1 at 30.]
On March 30, 2017, Plaintiff Wells Fargo removed this action to this Court based on
Defendant Martin’s Counterclaim against it, which alleges violations of a federal statute.
Amended Removal Notice ¶ 5 (asserting the Court has original jurisdiction under 28 U.S.C. §
1331 based on Martin’s FCRA claim).
“If at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); see Int’l Primate Prot. League v.
Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 87 (1991) (“[A] finding that removal was improper
deprives that court of subject matter jurisdiction and obliges a remand under the terms of §
1447(c).”). A “defendant or the defendants” may remove an action brought in state court to a
federal district court where the action is pending if the district court has original jurisdiction over
the action. 28 U.S.C. § 1441.
Recognizing the Supreme Court’s ruling in Shamrock Oil & Gas Corporation v. Sheets,
313 U.S. 100 (1941), the Ninth Circuit has held that “a plaintiff/cross-defendant cannot remove
an action to federal court.” Progressive W. Ins. Co. v. Preciado, 479 F.3d 1014, 1017–18 (9th
Cir. 2007). The Ninth Circuit has also “categorically stated that ‘[a] plaintiff who commences
his action in a state court cannot effectuate removal to a federal court even if . . . a counterclaim
is thereafter filed that states a claim cognizable in a federal court.’” Am. Int’l Underwriters
(Philippines), Inc. v. Cont’l Ins. Co., 843 F.2d 1253, 1260 (9th Cir. 1988) (citing Oregon Egg
Producers v. Andrew, 458 F.2d 382 (9th Cir. 1972)).
CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-2484 DMG (MRWx)

Title Wells Fargo Bank, N.A. v. David Martin Jr.

JS-6 / REMAND

Date

May 1, 2017
Page

2 of 2

Here, Plaintiff Wells Fargo, notwithstanding its status as a counterdefendant, is not
entitled to remove this action to federal court based on Martin’s Counterclaim. See id. (“The
right to remove a state court case to federal court is clearly limited to defendants.”); but see 28
U.S.C. § 1454(a) (expressly allowing removal by counterdefendant where counterclaim is one
“relating to patents, plant variety protection, or copyrights”).
Accordingly, the Court REMANDS this action to the County of Los Angeles Superior
Court for lack of subject matter jurisdiction. Wells Fargo’s pending motion to dismiss [Doc. # 9]
is DENIED without prejudice to renewal upon transfer to state court. The Court VACATES the
May 19, 2017 scheduling conference and hearing on the motion to dismiss.
IT IS SO ORDERED.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT