U.S. Bank National Association as Trustee v. Gonzales

Filing 8

ORDER GRANTING Motion to Remand; Granting in Part Request for Attorneys' Fees and Costs; and Denying Request to Bar Future Removals 3 , signed by Judge Oliver W. Wanger on 3/16/2011. ((1) This action is REMANDED to Kern County Superior Court ; (2) Plaintiffs request for $2,100.00 in attorneysfees and costs associated with this remand motion is GRANTED IN PART; Plaintiff shall recover only $1,500.00 in attorneys fees; (3) Plaintiffs request for an injunction against future remov als of this action is DENIED;(4) Plaintiffs proposed order, Doc. 6, filed March 15, 2011, SHALL BE DISREGARDED; and (5) Plaintiff shall re-submit a proposed order consistent with this memorandum decision within five (5) days of electronic service.) (Gaumnitz, R)

-JLT U.S. Bank National Association as Trustee v. Gonzales

Doc. 8

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UNITED STATES DISTRI CT CO URT FOR THE EASTERN DISTRICT OF C ALIFORNIA

U.S. BAN K NATIONAL ASSOCIAT ION, as Trus tee, Plaintiff, v. BEATRIZ GONZALES; an d DOES 1 through 100, inclusi ve, Defendants .

1:11-cv- 00060 OWW JLT ORDER GR ANTING MOTION TO REMAND; GRANTI NG IN PART REQUEST FOR AT TORNEYS' FEES AND COSTS ; AND DENYING REQUES T TO BAR FUTURE R EMOVAL S (DOC. 3)

This act ion concerns real property located at 120 0 Dorian D rive, Bakers field, California 93304 ("Sub ject Property "). Plainti ff, U.S. Bank Nat ional Association,

purchase d the proper ty pursuant to a Trustee's De ed Upon sale, re corded on or about November 1, 2010 in th e Official Records of Kern County. Complain t, at ¶ 4. See Doc. 1, Ex. 1,

On November 17, 2010, Plaintiff filed

an Unlaw ful Detainer action regarding the Subject Property against Def endant Beatriz Gonzales in Ke rn County S uperior Cour t - Metropolitan Judicial Dis trict. See Complaint. After being served with the Complaint on

December 5, 2010, Do c. 3- 2, Ex. 2 (proof of perso nal service upon Beatriz Gonzales), Defendant failed to answer a nd default j udgment was entered on Januar y 4, 2011. 1

Dockets.Justia.com

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On Janua ry 12, 2011, Defendant, who proceeds pro se, removed this action to federal court. Plaintiff timely

filed it s motion to remand on February 10, 2011 p ursuant to Title 28 U.S.C. § 1447(c)(motion to remand on the basis of any defect other than lack of subject ma tter jurisdic tion must be made within 30 days of filin g of notice o f removal). oppositi on. Remand i s required h ere because removal was untim ely. Notice o f removal of a civil action must be filed "within thirty d ays after th e receipt by the defendant, t hrough service or otherwise , of a copy of the initial pl eading setting forth the claim or relief upon whic h such acti on or proce eding is bas ed...." 28 U.S.C. § 1446(b). Here, The Defendant did not file an

Defendan t was person ally served on December 5, 20 10.

notice o f removal, f iled more than thirty days la ter on January 12, 2011, wa s therefore untimely. Even if the notice o f removal had been timely, th e case doe s not satisf y the requirements of the rem oval statute, 28 U.S.C. § 1441, which provides that a defendan t may remove to federal court any action over which th e federal co urt would have original jurisdiction: Except a s otherwise expressly provided by Act of Congress , any civil action brought in a State court of which the d istrict courts of the United States h ave original jurisdiction, may be 2

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removed by the defen dant or the defendants, to the dist rict c ourt o f the Uni ted States for the district and divisio n embracing the place where such act ion is pendi ng. For purposes of removal under th is chapter, the citizenship of defendan ts sued unde r fictitious names shall be disregar ded. 28 U.S.C . § 1441(a). Federal courts have original jurisdiction over ci vil actions arising unde r the U.S. Constitution, fede ral laws, or treaties of the United States -- so called "federal questions." 28 U.S.C. § 1331. Federal Question

jurisdic tion is gove rned by the "well-pleaded complain t rule," w hich provide s that the federal question m ust be presente d on the fac e of the plaintiff's properly pleaded complain t. Wa yne v. DHL Worldwide Express, 294 F .3d The existence of a d efense Id. Here, ther e

1179, 11 83 (9th Cir. 2002).

based on federal law is insufficient.

is no fe deral questi on jurisdiction because the f ace of the comp laint reveal s only one claim: a state law cause of actio n for Unlawf ul Detainer arising under Cal ifornia Code of Civil Proced ure §1161(a), a local action involvin g the law of real property and contract. Alternat ively, a Fed eral Court may assert origina l jurisdic tion over ci vil actions where the matter in controve rsy exceeds $75,000 in value, exclusive o f interest and costs, and is between citizens of di fferent 3

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States, pursuant to the "diversity" statute, 28 U .S.C. § 1331. E ven assuming the truth of the allegation in the

complain t that the a mount in controversy is $95,0 00, removal of diversity cases is limited to situatio ns where "none of the parties in interest properly joined and served a s defendants is a citizen of the State in which such act ion is broug ht." 28 U.S.C. 1441(b). Her e, based

on Beatr iz Gonzales' admitted residence in Califo rnia, Doc. 1 a t 2, and the absence of any other allegat ion suggesti ng her citiz enship is elsewhe re, it appears that Defendan t is a citiz en of the state in which this action is broug ht and there fore is barred from removing this case to federal cour t. Plaintif f also reque sts that it be allowed to rec over its reas onable fees and costs incurred in filing this motion f or remand, i n the amount of $2,100.00. 2 8 U.S.C.

§ 1447 p rovides that "[a] n or der remanding the ca se may require payment of j ust costs and any actual expe nses, includin g attorney f ees, incurred as a result of the removal. " "Ab sent unusual circumstances, courts may

award at torney's fee s under § 1447(c), only where the removing party lacke d an objectively reasonable b asis for seeking removal." U.S. 132 , 141 Martin v. Franklin Capit al Corp., 546 A pro se defe ndant is "entitle d 4

(2005).

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to more leeway in hi s attempt to comply with the removal statute, as long as it was not objectively unreas onable." HSBC Ban k USA, N.A. v. Bryant, 2009 WL 3787 195 (S .D. Cal. Nov. 10, 2009). Nevertheless, pro se litig ants " must

follow t he same rule s of procedure that gov ern ot her litigant s." 1987). K ing v. Atiyeh, 814 F.2d 565, 567 (9 th Ci r.

Defend ant has failed to offer any e xplana tion for

her remo val, which f ails to comply with the facia l requirem ents of the removal statute. Plaintif f's request for $2,100.00 in fees include d 4.0 bill able hours ( at $175.00/hour) for a total of $700.00 to prepare t he motion. The request also

anticipa ted eight ho urs of billable time to prepa re a reply an d attend the hearing, an additional $1,400.00. In light of Defendan t's non-oppositio n and Plaint iff's failure to file a re ply, this eight-hour al locati on is excessiv e. Defendan t's total recovery shal l be l imite d

to $1,50 0.00, which reflects time spent preparing the motion a nd a reasona ble fee for defen se counsel's personal attendance at the hearing. Finally, Plaintiff r equests a court order barring future r emovals in t his action. Courts have rule d that

when par ties file mu ltiple frivolous removals, th e Court may bar any future r emovals of that state a ction. 5 U.S.

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Bank Nat 'l Ass'n v. Garcia, 2 010 WL 3505093 (Sept. 3, 2010). Plaintiff ha s not presented evidence of p revious

frivolou s removals w arranting an injunction again st future r emoval activ ity. make. CONCLUSION For the reasons set forth above: (1) This action is R EMANDED to Kern County Superi or Court; (2) Plai ntiff's requ est for $2,100.00 in attorney 's fees and costs assoc iated with this remand motion is GRANTED IN PART; Pla intiff shall recover only $1, 500.00 in attor ney's fees; (3) Plai ntiff's requ est for an injunction against future r emovals of t his action is DENIED; (4) Plai ntiff's prop osed order, Doc. 6, filed Mar ch 15, 2011 , SHALL BE D ISREGARDED; and (5) Plai ntiff shall re-submit a proposed order consiste nt with this memorandum decision within f ive (5) days of electronic s ervice. One incident does not a pattern

IT IS SO ORDERED Dated: March 16, 20 11

/s/ Oliver W. Wa nger United States Distri ct Judge

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