Clappier v. Umpqua Bank et al

Filing 15

ORDER signed by Judge John A. Mendez on 6/19/15 GRANTING 7 Motion to Remand. CASE REMANDED to Nevada Superior Court. Copy of remand order sent. CASE CLOSED. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOAN CLAPPIER,

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Plaintiff,

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No. 2:15-cv-00896-JAM-CKD

v.

ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

UMPQUA BANK; UMPQUA HOLDING
CORPORATION; KANIKA HOLLOWAY;
JESSICK PARRACK, also known
as Jessica Parrack; and Does
1 through 20, inclusive,

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Defendants.

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Plaintiff Joan Clappier (“Plaintiff”) sued her mortgage

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company and two of its employees in Nevada County Superior Court.

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Defendants Umpqua Bank, Umpqua Holding Corporation, Kanika

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Halloway, and Jessica Parrack (collectively, “Defendants”)

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removed the case.

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remands. 1

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///

Because removal was untimely, the Court

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for June 17, 2015.
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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff claims that Defendants breached verbal and written

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agreements to refinance the mortgage on her ranch.

Compl. at 4-

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7.

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her good credit rating.

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in state court, asserting breach of contract, unfair business

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practices, fraud, violation of California Civil Code section

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2924i, and slander of credit.

This breach allegedly caused Plaintiff to lose her ranch and

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Id. at 12-13.

Plaintiff sued Defendants

Plaintiff served Defendants with her complaint on February

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22, 2015.

Farrar Decl. ¶ 7; id. Exh. A.

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attorney for Defendants Umpqua Bank, Umpqua Holding Corporation,

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and Jessica Parrack “had [his] first extended conversation with

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[Defendant] Halloway.”

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revealed information about Halloway’s bankruptcy, leading

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Defendants’ attorney to conclude that Halloway was a sham

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defendant and that diversity jurisdiction was available.

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Four days later, Defendants filed a notice of removal (Doc. #1).

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About three weeks after removal, Plaintiff brought this

Kraft Decl. ¶ 7.

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motion to remand (Doc. #7).

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On April 23, 2015, an

This conversation

Id.

#11).
II.

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Defendants oppose the motion (Doc.

OPINION

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A.

Legal Standard

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A defendant may remove a state-court action if the initial

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pleading could have been filed in federal court.

28 U.S.C.

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§ 1446; Caterpillar, Inc., v. Williams, 482 U.S. 386, 392 (1987);

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Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir.

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2006).

However, a court must strictly construe the removal
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statute against removal jurisdiction.

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F.2d 564, 566 (9th Cir. 1992).

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rejected if there is any doubt as to the right of removal in the

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first instance.”

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592 F.2d 1062, 1064 (9th Cir. 1979)).

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Gaus v. Miles, Inc., 980

“Federal jurisdiction must be

Id. (citing Libhart v. Santa Monica Dairy Co.,

Defendants lose their right to removal if the notice of

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removal is untimely.

Durham, 445 F.3d at 1253.

If the basis for

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removal is apparent from the initial pleading, Defendants who

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seek removal must do so within thirty days after receiving that

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pleading.

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Although this time limit is not jurisdictional, it is “mandatory”

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and “cannot be extended by continuance or stipulation.”

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v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980);

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Lewis v. City of Fresno, 627 F. Supp. 2d 1179, 1182 (E.D. Cal.

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2008) (citations omitted).

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investigation revealing another basis for removal.

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Hollywood Medical Center, L.P., 720 F.3d 1121, 1123 (9th Cir.

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2013); Durham, 445 F.3d at 1253.

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the basis of untimely removal must move for remand within thirty

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days of the notice of removal.

28 U.S.C. § 1446(b); Durham, 445 F.3d at 1253.

Fristoe

Nor can it be extended by later
Roth v. CHA

A plaintiff seeking remand on

28 U.S.C. § 1447(c).

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B.

Judicial Notice

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As an initial matter, Defendants request judicial notice of

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Plaintiff’s complaint and Defendant Halloway’s bankruptcy

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filings (Doc. #11-2).

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record and are not subject to reasonable dispute, the Court

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takes judicial notice.

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Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th

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Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 662, 689 (9th

Because these documents are in the public

See Fed. R. Evid. 201; Santa Monica Food

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Cir. 2001).

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C.

Analysis

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Plaintiff seeks remand on the basis that removal was

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untimely, and that there is neither federal question nor

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diversity jurisdiction.

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issues, because the first issue is dispositive.

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The Court does not reach the latter

The parties agree that Defendants filed their notice of

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removal more than thirty days after being served with the

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original complaint.

Defendants put forth two arguments for why

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the Court should excuse the late filing.

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contend that Plaintiff should be estopped from objecting to

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timeliness because her attorney misled them.

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Second, Defendants suggest that they were not subject to the

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thirty-day limitation, because their own investigation revealed

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“new information indicating grounds for removal.”

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Neither argument prevails.

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First, Defendants

See Opp. at 4.

See id. at 5.

Plaintiff’s attorney has not engaged in “gamesmanship” or

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“sat on [Plaintiff’s] rights”.

Defendants complain that

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Plaintiff’s attorney failed to reveal that Plaintiff intended to

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move for remand, and led them to believe that a first amended

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complaint would be filed, thus “delaying [] removal.”

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5.

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within the thirty-day period prescribed by section 1447(c).

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Plaintiff’s attorney was under no obligation to advise Defendants

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of his litigation strategy or to remind them about the time

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limits in the removal statutes.

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misled Defendants’ counsel about Plaintiff’s intention to file a

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first amended complaint, such amendment would not affect the

Id. at 4-

But Plaintiff’s motion to remand is timely, as it was filed

Even if Plaintiff’s attorney had

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right to remove, which is based on the “initial” pleading.

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28 U.S.C. § 1446(b).

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Defendants’ removal and is not estopped from seeking remand.

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The Court also rejects Defendants’ second argument.

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Defendants removed on the basis of both federal question and

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diversity jurisdiction.

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federal question jurisdiction based on information revealed in

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the original complaint: namely, that Plaintiff’s sixth cause of

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action was preempted by the Federal Fair Credit Reporting Act.

See

Plaintiff has not waived her objections to

Notice of Removal at 2.

They asserted

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See id.

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complaint, the thirty-day clock began to run when the complaint

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was served.

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information about Defendant Holloway.

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1253 (“When the defendant receives enough facts to remove on any

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basis under section 1441, the case is removable, and section

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1446’s thirty-day clock starts ticking.

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that the case is also removable on another ground under section

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1441 doesn’t help bring [the case] into federal court.”).

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Because this basis for removal was apparent from the

And the clock was not reset by later-discovered
See Durham, 445 F.3d at

. . . [L]ater disclosure

Defendants’ removal was therefore untimely.

The Court

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sustains Plaintiff’s timely objection, and remands this case to

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Nevada County Superior Court.

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III.

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ORDER

For the reasons set forth above, the Court GRANTS
Plaintiff’s motion to remand.
IT IS SO ORDERED.
Dated: June 19, 2015

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