Hawkins et al v. First Horizon Home Loans et al

Filing 24

ORDER signed by Judge Garland E. Burrell, Jr on 8/2/2011 ORDERING that this case is REMANDED to the Superior Court of California in the County of San Joaquin. Copy of remand order sent. CASE CLOSED. (#39-2011-00259498) (Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC HAWKINS SR., and
LYNDA P. HAWKINS,

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Plaintiffs,

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v.
FIRST HORIZON HOME LOANS, a
division of First Tennessee Bank
N.A., successor in interest by
merger to First Horizon Home
Loan Corporation, a Tennessee
corporation; FORT KNOX LENDING,
a California business entity
form unknown; CALIFORNIA HOME
AND MORTGAGE, a California
business entity form unknown;
JAMES JABAUT, an individual;
LOANGUY.COM, a California
corporation; SOUTH BAY REALTY,
INC., a California corporation;
and DOES 2-10,
Defendants.
________________________________

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2:11-cv-01325-GEB-EFB
ORDER GRANTING MOTION TO
REMAND AND DENYING REQUEST
FOR ATTORNEYS’ FEES AND
COSTS*

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Plaintiffs move for an order remanding this case to the

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Superior Court of California in the County of San Joaquin, which is the

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state court from which this case was removed, and an award of attorneys’

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fees and costs incurred as a result of the improper removal. (ECF No.

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14.) Plaintiffs argue, inter alia, that removal was improper since the

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federal court lacks subject matter jurisdiction over their Complaint.

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*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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Defendant First Horizon Home Loans opposes the motion. For the reasons

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stated below, Plaintiffs’ motion to remand will be granted and their

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request for attorneys’ fees and costs will be denied.

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Defendant

First

Horizon

Home

Loans

relies

solely

on

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Plaintiffs’ claim alleged under California’s Unfair Competition Law

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(“UCL”), proscribed in California Business and Professions Code section

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17200 et seq., as the basis for its contention that federal question

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removal jurisdiction exists under 28 U.S.C. § 1331. (Notice of Removal

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¶¶ 10-13; Opp’n 7:3-8:2.) Specifically, Defendant First Horizon Home

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Loans

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necessitate[s]

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involving numerous federal laws, including but not limited to TILA,

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RESPA, and FACTA.” (Opp’n 7:3-5.)

argues

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this
the

“state

law

resolution

claim[
of

is]

predicated

substantial,

upon,

disputed

and

questions

28 U.S.C. § 1331 prescribes: “The district courts shall have

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original

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Constitution,

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federal-question jurisdiction cases are those in which federal law

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creates a cause of action. A case may also arise under federal law where

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it appears that some substantial, disputed question of federal law is a

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necessary element of one of the well-pleaded state claims.” Wander v.

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Kaus,

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quotation marks omitted). “The . . .‘well-pleaded complaint rule’ . . .

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provides that federal jurisdiction exists only when a federal question

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is presented on the face of the plaintiff’s properly pleaded complaint.”

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California v. United States, 215 F.3d 1005, 1014 (9th Cir. 2000)

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(quoting Audette v. Int’l Longshoremen’s & Warehousemen’s Union, 195

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F.3d 1107, 1111 (9th Cir. 1999)). “The [well-pleaded complaint] rule

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makes the plaintiff the master of [his] claim[s]; he . . . may avoid

304

jurisdiction
laws,

F.3d

856,

of
or

858

all

civil

treaties

(9th

of

Cir.

2

actions
the

2002)

arising

United

under

States.”

(citations

and

the
“Most

internal

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federal jurisdiction by exclusive reliance on state law.” Caterpillar,

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Inc. v. Williams, 482 U.S. 386, 392 (1987).

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“‘Arising under’ federal jurisdiction only arises . . . when

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the federal law does more than just shape a court’s interpretation of

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state law; the federal law must be at issue.” Int’l Union of Operating

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Eng’rs v. County of Plumas, 559 F.3d 1041, 1045 (9th Cir. 2009). “[A]

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case arises under . . . [federal law when] a right . . . created by

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[that law is] an element, and an essential one, of the plaintiff’s cause

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of action.” Id. at 1044. However, “the mere presence of a federal issue

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in

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federal-question jurisdiction.” Lippitt v. Raymond James Fin. Servs.,

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Inc., 340 F.3d 1033, 1040 (9th Cir. 2003). Further, “[w]hen a claim can

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be supported by alternative and independent theories-one of which is a

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state law theory and one of which is a federal theory-federal question

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jurisdiction does not attach[.]” Rains v. Criterion Sys., Inc., 80 F.3d

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339, 346 (9th Cir. 1996).

a

state

cause

of

action

does

not

automatically

confer

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Plaintiffs allege in their UCL claim:

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Defendants have engaged in “unlawful” business
practices within the meaning of Section 17200 by
committing
intentional
common
law
misrepresentations, statutory fraud, breach of
written contract, breach of fiduciary duty,
negligent lending, unjust enrichment, tortious
breach of good faith and fair dealing, predatory
lending practices designed to financially abuse
Plaintiffs and profiting thereby, fraudulently
inducing Plaintiffs to contract, and violations of
[California Civil Code] § 1916.71(c) . . . , and
violations of TILA (15 USC §§ 1639, 1639(h),
1638(b), Regulations Z 226.17(b), and 226.19(a)),
RESPA (12 U.S.C. § 2607), FACTA (section 212(b) of
the FACT Act of 2003) as shown below.

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(Compl. ¶ 84.) Plaintiffs’ alleged federal statutory violations in their

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UCL

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Plaintiffs also allege “alternative and independent theories-one of

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claim

are

not

“necessary

element[s]

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of

[their]

claim”

since

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which is a state-law theory” alleging violations of California law as a

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predicate act for their UCL claim. Rains, 80 F.3d at 346. In light of

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the alternative ways Plaintiffs have plead their UCL claim, “[t]here is

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no ‘basic’ or ‘pivotal’ federal question that impinges on [their] right

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to relief.” Lippitt, 340 F.3d at 1046. Since Plaintiffs’ UCL claim does

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not

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jurisdiction and therefore, Plaintiffs’ remand motion is GRANTED.

“arise

under”

federal

law,

this

Court

lacks

subject

matter

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Plaintiffs also argue they are entitled to attorneys’ fees and

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costs under 28 U.S.C. § 1447(c) since removal was improper. (Mot. to

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Remand 6:8-10.) “[T]he standard for awarding fees should turn on the

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reasonableness of the removal. Absent unusual circumstances, courts may

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award attorney’s fees under § 1447(c) only where the removing party

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lacked an objectively reasonable basis for seeking removal.” Martin v.

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Franklin

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Plaintiffs have failed to “document[] the . . . hours [their attorney]

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expended and [their attorneys’] hourly rates[,]” Plaintiffs have not

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substantiated their request for attorneys’ fees and costs, and their

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request is DENIED. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

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Capital

Corp.,

546

U.S.

132,

141

(2005).

However,

For the stated reasons, this case is remanded to the Superior

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Court of California in the County of San Joaquin.

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Dated:

August 2, 2011

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since

GARLAND E. BURRELL, JR.
United States District Judge

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