SRD Investments Inc. v. Montes

Filing 11

AMENDED FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion to Remand be GRANTED 4 ; This action be Remanded to State Court; Plaintiff be awarded in $1,705.00 in attorneys' fees incurred as a result of improper re moval ; referred to Judge O'Neill; ORDERED that the hearing on Plaintiff's Motion scheduled for January 8, 2014 at 9:30 a.m. is VACATED, signed by Magistrate Judge Stanley A. Boone on 01/02/2013. Objections to F&R due by 2/6/2014 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SRD INVESTMENTS INC.,

Case No. 1:13-cv-01872-LJO-SAB

Plaintiff,

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AMENDED FINDINGS AND
RECOMMENDATIONS RECOMMENDING
THAT PLAINTIFF’S MOTION TO
REMAND BE GRANTED

v.

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NANCY MONTES, et al.,

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Defendants.

ECF NO. 4
OBJECTIONS DUE WITHIN THIRTY (30)
DAYS

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On December 31, 2013, the Court issued a Findings and Recommendations that

19 contained certain typographical errors. The Court issues the following Amended Findings and
20 Recommendations correcting those errors.
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On November 20, 2013, Plaintiff SRD Investments Inc. (“Plaintiff”) filed a motion to

22 remand this action back to state court. (ECF No. 4.) The motion was referred to the undersigned
23 magistrate judge for findings and recommendations pursuant to 28 U.S.C. § 636(b).
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The Court finds it appropriate for Plaintiff’s motion to be submitted upon the record and

25 briefs on file without need for oral argument. See Local Rule 230(g). Accordingly, the hearing
26 on this matter is vacated. For the reasons set forth below, the Court recommends that Plaintiff’s
27 motion to remand be granted.
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I.

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BACKGROUND

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This action was removed from the Superior Court of California for the County of Madera

4 on November 19, 2013. (ECF No. 1.) Defendant Nancy Montes (“Defendant”) removed this
5 action on the basis of federal question jurisdiction.
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Plaintiff filed the original complaint in this matter against Defendant for unlawful

7 detainer after non-judicial foreclosure sale. Plaintiff alleged that it acquired title to the real
8 property at 1119 Lemon Tree Drive, Madera, California 93637 via non-judicial foreclosure sale.
9 Plaintiff further alleges that Defendant is in possession of the real property at issue without
10 Plaintiff’s authorization.
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II.

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LEGAL STANDARDS FOR MOTIONS TO REMAND

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Removal of actions from state court to federal court are generally governed by 28 U.S.C.

14 § 1441, which states, in pertinent part:
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(a)
Generally.--Except as otherwise expressly provided by Act
of Congress, any civil action brought in a State court of which the
district courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants, to the district court
of the United States for the district and division embracing the
place where such action is pending.
Motions to remand are governed by 28 U.S.C. § 1447(c), which states, in pertinent part:

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If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded. 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.

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Removal statutes must be construed narrowly in favor of remand to protect the

24 jurisdiction of state courts. Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir.
25 2005). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in
26 the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Libhart v. Santa
27 Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).
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III.

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DISCUSSION

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A.

Remand is Proper Because This Court Lacks Jurisdiction Over Plaintiff’s
Complaint

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District courts have original jurisdiction over “all civil actions arising under the

6 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “The well-pleaded7 complaint rule has long governed whether a case ‘arises under’ federal law for purposes of §
8 1331.” Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 830 (2002).
9 “[F]ederal jurisdiction generally exists ‘only when a federal question is presented on the face of
10 the plaintiff’s properly pleaded complaint.’” Id. (quoting Caterpillar Inc. v. Williams, 482 U.S.
11 386, 392 (1987) (italics in original). Federal question jurisdictions cannot be premised on federal
12 issues raised in a defendant’s answer or counterclaim. Id.
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Defendant contends that federal question jurisdiction is proper based on issues arising

14 under the “Protecting Tenants at Foreclosure Act of 2009,” 12 U.S.C. § 5201. Defendant
15 contends that this statute requires a ninety day notice period prior to the filing of any state
16 eviction proceeding. Even if this were true, this issue is not raised in Plaintiff’s complaint.
17 Accordingly, it is best characterized as a defense or a counterclaim, and therefore cannot serve as
18 the basis of federal question jurisdiction. The Court finds that removal was improper because
19 this Court lacks jurisdiction over this action and that this action should be remanded to state
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Request for Attorneys’ Fees and Costs

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B.

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Plaintiff requests the recovery of attorneys’ fees and costs associated with improper

23 removal. Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of
24 just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”
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The Court finds that Defendant had no proper basis to remove this action and an award of

26 fees under Section 1447(c) is appropriate. However, the amount of fees awarded under Section
27 1447(c) must be reasonable. Albion Pacific Property Resources, LLC v. Seligman, 329 F. Supp.
28 2d 1163, 1166 (N.D. Cal. 2004).

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In this case, Plaintiff seeks the recovery of $1,705.00 in attorneys’ fees, based upon at

2 least 6.5 hours of work billed at $250.00 per hour and at least 1 hour of work billed at $80.00 per
3 hour. The Court finds that the requested attorneys’ fee in this matter is reasonable. The Court
4 will award $1,705.00 in attorneys’ fees incurred as a result of improper removal.
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IV.

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CONCLUSION AND RECOMMENDATION

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Based upon the foregoing, the Court finds that remand is appropriate and that an award of

8 $1,705.00 in attorneys’ fees is appropriate.
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It is HEREBY ORDERED that the hearing on Plaintiff’s motion scheduled for January 8,

10 2014 at 9:30 a.m. is VACATED.
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Further, it is HEREBY RECOMMENDED that:

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Plaintiff’s motion to remand be GRANTED (ECF No. 4);

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This action be remanded to state court; and

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3.

Plaintiff be awarded in $1,705.00 in attorneys’ fees incurred as a result of

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improper removal.
These findings and recommendations are submitted to the district judge assigned to this

17 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30)
18 days of service of this recommendation, any party may file written objections to these findings
19 and recommendations with the Court and serve a copy on all parties. Such a document should be
20 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district
21 judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. §
22 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may
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1 waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
2 1991).
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IT IS SO ORDERED.
Dated:

January 2, 2014
UNITED STATES MAGISTRATE JUDGE

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