Cecilia Cole et al v. Raju Patel et al

Filing 17

MINUTES [IN CHAMBERS] ORDER REGARDING MOTION TO REMAND #5 by Judge James V. Selna: For the following reasons, the Court GRANTS the motion to remand and GRANTS an award of attorneys' fees. Granting #5 MOTION to Remand Case to State Court. [See document for further information.] MD JS-6. Case Terminated. (es)

JS-6

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

8:24-cv-02132-JVS-ADS

Title

Cole et al. v. Patel et. al.

Date

November 25, 2024

is removed. City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997).
According to the Ninth Circuit, courts should “strictly construe the removal statute
against removal jurisdiction.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241,
1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).
Doubts as to removability should be resolved in favor of remanding the case to the state
court. Id. This strong “presumption against removal jurisdiction means that ‘the
defendant always has the burden of establishing that removal is proper.’” Id. (quoting
Gaus, 980 F.2d at 566).
Generally, a defendant must remove an eligible civil action within thirty days of
receiving service of the complaint. 28 U.S.C. § 1446(b)(1). If, however, “the case stated
by the initial pleading is not removable, a notice of removal may be filed within thirty
days after receipt by the defendant . . . a copy of an amended pleading, motion, order, or
other paper from which it may first be ascertained that the case is one which is or has
become removable.” 28 U.S.C. § 1446(b)(3).
“A motion to remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the notice of removal.”
28 U.S.C. § 1447(c); see also Maniar v. FDIC, 979 F.2d 782, 786 (9th Cir. 1992). “The
[thirty-day] statutory time limit for removal petitions is merely a formal and modal
requirement and is not jurisdictional.” Friedenberg v. Lane Cnty., 68 F.4th 1113, 1121
(9th Cir. 2023) (quoting Smith v. Mylan Inc., 761 F.3d 1042, 1045 (9th Cir. 2014).
Thus, “[a]lthough the time limit [to remove a case] is mandatory and a timely objection
to a late petition will defeat removal, a party may waive the defect . . . by sitting on his
rights.” Id.
III. DISCUSSION
A.

Defendants’ Removal Was Untimely

A court may remand for defects other than lack of subject matter jurisdiction only
upon a timely motion to remand. 28 U.S.C. § 1447(c) (“A motion to remand [a] case on
the basis of any defect other than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under § 1446(a).”); Smith v. Mylan Inc.,
761 F.3d 1042, 1044 (9th Cir. 2014). The Ninth Circuit has held that a claimed defect
for the timeliness of removal is a procedural defect in nature, not jurisdictional. Id. at
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

8:24-cv-02132-JVS-ADS

Title

Cole et al. v. Patel et. al.

Date

November 25, 2024

1045 (holding that § 1446(b)’s one-year time limitation for removal of diversity cases is
procedural just like the thirty-day statutory limit for removal). Therefore, “a district
court lacks authority to remand based on the defendant’s [untimely removal] absent a
timely filed motion to remand.” Id.
Because timing is a procedural defect, Plaintiffs were required to file their motion
to remand within 30 days. See 28 U.S.C. § 1447(c); In re Edward Jones Holders Litig.,
453 F. Supp. 2d 1210, 1213 (C.D. Cal. 2006) (holding that the time limit is not extended
if the defendant mails the notice to plaintiff). “The 30-day period runs from the date that
the notice of removal is filed, not from when the plaintiff is served with notice.” Id. at
1214 (citing 16 Moore’s Federal Practice § 107.41[1][d]).
As a threshold inquiry, Plaintiffs motion for remand must be timely in order to
remand the case on the basis of a procedural defect.2 A timely motion is one that is filed
within 30 days of the notice of removal. See 28 U.S.C. § 1447(c). In this case, the
notice of removal was October 1, 2024. (Dkt. No. 1.) Plaintiffs filed their motion for
remand on October 24, 2024. (Mot., Dkt. No. 5.) This is within 30 days and thus,
Plaintiffs’ motion was timely.
Therefore, because Plaintiffs have properly objected, the sole question remains
whether removal was timely under § 1446(a). If notice of removal was timely, then the
Court will move to the question of whether it has subject matter jurisdiction. If removal
was untimely, then the court may remand on the basis of such procedural defect because
Plaintiff did not waive such a defect. See Friedenberg v. Lane Cnty., 68 F.4th 1113,
1121 (9th Cir. 2023) (“[T]he time limit [to remove a case] is mandatory and a timely
objection to a late petition will defeat removal[.]”)

2

Defendants appear to misunderstand the standard. The Court is not going to, and cannot, sua
sponte remand a case based on a claimed procedural defect—this much is clear. But when the other
party files a timely motion on said procedural defect, the Court is well within its right to remand based
on said procedural defect. See Kelton Arms Condominium Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d
1190, 1192–93 (9th Cir. 2003). Indeed, without an ability to do so, § 1446(b) would be entirely
meaningless. The purpose behind the rule prohibiting sua sponte remand is that “[a] plaintiff may wish
to remain in federal court even though he or she originally filed in state court.” Id. Of course, when the
plaintiff timely opposes on the basis of a procedural defect, the Court may remand “for the protection of
the part[y].” Id.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

8:24-cv-02132-JVS-ADS

Title

Cole et al. v. Patel et. al.

Date

November 25, 2024

Here, Defendants were served with process in the underlying unlawful detainer
action on July 15, 2024. (Mot. at 6.) Defendants do not rebut this assertion. Thus,
Defendants had until August 14, 2024 to remove the action. See 28 U.S.C. § 1446(b);
Fed. R. Civ. P. 6(a). Defendants did not file a notice of removal until October 1, 2024.
Thus, Defendants removal was late and the removal is not warranted.
Defendants respond that they did not have “specific and unambiguous notice” that
the case would satisfy federal jurisdictional requirements and thus, they timely filed for
removal when they investigated and discovered the removability. (Opp’n at 6–7.)
Defendants provide no cogent explanation for their investigation and why they could not
have discovered federal jurisdiction sooner. Rather, Defendants simply state one line:
“The question of removal is based on Roth and Defendants own investigation after the
thirty day period under Section 1446(b) that the case is removable.”
Defendants single-line explanation provides the Court with no insight into why
Defendants were unaware of any federal question sooner. Indeed, Defendants’
opposition clearly bases its claim for federal subject matter jurisdiction on the lease
agreement, which it readily had available, and no other basis. It is axiomatic that there is
a strong “presumption against removal jurisdiction[, and that] means that ‘the defendant
always has the burden of establishing that removal is proper.’” Moore-Thomas, 553
F.3d at 1244 (citing Gaus, 980 F.2d at 566).
Defendant has entirely failed to satisfy its burden of explaining why federal
subject matter was unclear or why delay was warranted. Accordingly, the Court
GRANTS the motion to remand.
B.

Attorneys’ Fees

“An order remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C.
§ 1447(c). The Supreme Court has rejected the idea that Section 1447(c) either provides
an automatic right to attorney’s fees upon remand, or creates a presumption on favor of
awarding attorney’s fees upon remand. Martin v. Franklin Capital Corp., 546 U.S. 132,
138–39 (2005). Rather, “[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
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

8:24-cv-02132-JVS-ADS

Title

Cole et al. v. Patel et. al.

Date

November 25, 2024

should be denied.” Id. at 141 (internal citation omitted); Chan Healthcare Grp., PS v.
Liberty Mut. Fire Ins. Co., 844 F.3d 1133 (9th Cir. 2017).
This case is paradigmatic of the type of case that warrants an award of attorneys’
fees. First, removal was plainly a delay tactic. As Plaintiffs’ motion makes clear,
Defendants were on the precipice of a sanctions hearing for failure to respond to
outstanding discovery. (See Mot. at 2 (citing Dkt. No. 6, Ex. 3).) Two days prior to the
hearing, Defendants removed this action to federal court. (Dkt. No. 1.) Moreover, as
Plaintiffs’ counsel notes, Plaintiffs were unable to reach Defendants to meet and confer
regarding the instant motion. (Declaration of Ron E. Torres, Dkt. No. 5.) These facts
tend to suggest that removal was merely a delay tactic to avoid discovery obligations,
delay proceedings, and avoid the focus of sanctions.
Second, Defendants’ assertion of federal jurisdiction was specious and ultimately
unsound. While the Court did not address Defendants’ basis for subject matter, it will
briefly do so for the purposes of attorneys’ fees. Defendants assert subject matter
jurisdiction on the basis that their defense relies on the FAA, governed under federal law.
Yet, the federal rules are clear that a federal question must be decided on the face of the
complaint.3 See Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908). Indeed,
as the Supreme Court held in Rivet v. Regions Bank of Louisiana,
We have long held that “[t]he presence or absence of federal-question jurisdiction
is governed by the well-pleaded complaint rule,’ which provides that federal
jurisdiction exists only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint. A defense is not part of a plaintiff’s
properly pleaded statement of his or her claim.
522 U.S. 470, 574 (1998) (internal citations omitted).
While the “artful pleading” doctrine does allow for removal where federal law
preempts a plaintiff’s state-law claim, such is not the case here. Plaintiffs have not
attempted to “artfully plead” their complaint to avoid federal questions of civil rights,
arbitration, or RICO. These claims are largely without merit and were dismissed without

3

Often referred to as the Mottley Rule or the Well-Pleaded Complaint Test.

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

8:24-cv-02132-JVS-ADS

Title

Cole et al. v. Patel et. al.

Date

November 25, 2024

prejudice in federal court. (See Decl. of Frank A. Weiser for Defendants, Dkt. No. 15, ¶
5.)
Third, Defendants’ inability to explain their “investigation” and late realization of
removal weighs strongly in favor of awarding attorneys’ fees. Despite filing an untimely
removal, Defendants spent only one page in opposition to respond to the clear procedural
defect. (See Opp’n at 6.) Instead of explaining the defect, Defendants spent one-third of
their page-long argument explaining that the Court cannot “sua sponte remand” for
procedural defects and that a procedural defect is “waivable by the plaintiff.” Suffice it
to say, Plaintiffs’ motion did not waive the defect.
The remainder of Defendants’ argument was dedicated towards reciting statutory
language and several inapposite cases to suggest that it was permissible to discover
subject matter jurisdiction late. Putting aside Plaintiffs’ poignant finding that
Defendants relied on their same removal arguments in a filing on July 27, 2024, well
within the period to timely file a removal, (see Reply at 4–5), Defendants still failed to
provide any explanation for the late discovery.
Accordingly, the Court GRANTS Plaintiffs’ motion for attorneys’ fees. Plaintiffs’
counsel shall file a brief within ten (10) days of this Order providing evidence of
attorneys’ fees related to the instant motion.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the motion to remand and
GRANTS an award of attorneys’ fees.
IT IS SO ORDERED.
The Court further finds that oral argument would not be helpful on this matter.
Fed. R. Civ. P. 78; L.R. 7-15. Accordingly, the Court VACATES the December 2,
2024, hearing.

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