Pack v. Hoge Fenton Jones & Appeal, Inc. et al

Filing 43

Order by Hon. Samuel Conti granting (12) Motion to Remand and Motion for Attorney Fees in case 3:12-cv-04513-SC; Ordering Supplemental Briefing; Retaining Jurisdiction over Motions for Sanctions in cases 3:12-cv-04512-SC (Dkt. No 35) and 3:12-cv-04513-SC (Dkt. No. 20). Associated Cases: 3:12-cv-04513-SC, 3:12-cv-04512-SC(sclc2, COURT STAFF) (Filed on 12/7/2012)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ROBERT PACK, Plaintiff, v. 10 For the Northern District of California United States District Court 9 11 12 HOGE FENTON JONES & APPEL, INC., et al., 13 Defendants. ) ) ) ) ) ) ) ) ) ) ) Case Nos. 12-cv-4512-SC 12-cv-4513-SC ORDER TERMINATING AND REMANDING CIVIL CASES; GRANTING ATTORNEY FEE REQUEST; ORDERING SUPPLEMENTAL BRIEFING; RETAINING JURISDICTION OVER MOTIONS FOR SANCTIONS 14 For the reasons set forth below, the Court terminates Case No. 15 16 12-cv-4512-SC and remands Case No. 12-cv-4513-SC but retains 17 jurisdiction over the pending motions for sanctions that have been 18 filed in both cases. 19 attorney fees incurred as a result of removal, but defers ruling on 20 the amount of the award and the question of who must pay. 21 Court orders supplemental briefing on those issues. 22 argument shall be held in these matters. The Court also grants Defendants' request for The No oral Civ. L.R. 7-1(b). 23 24 25 I. BACKGROUND Plaintiff Robert Pack has filed two civil cases against Hoge 26 Fenton Jones & Appel, Inc., a law firm that formerly represented 27 him, and attorneys affiliated with the firm (collectively, 28 "Defendants"). Case Nos. 12-cv-4512-SC (the "'12 case"), 12-cv- 1 4513-SC (the "'13 case"). In the '12 case, Mr. Pack asserts claims 2 for fraud, breach of contract, breach of the implied covenant of 3 good faith and fair dealing, and violations of the civil RICO 4 statute, 18 U.S.C. § 1962. 5 claims for legal malpractice and breach of fiduciary duty. 6 case was originally filed in the California Superior Court for 7 Alameda County on January 14, 2011 and assigned case number 8 RG11556084.1 9 plaintiff, removed that case to this Court on the same day that he In the '13 case, Mr. Pack asserts However, Mr. Pack, notwithstanding his status as a United States District Court 10 For the Northern District of California The '13 filed the '12 case, i.e., August 28, 2012. 11 On September 19, 2012, the Court related the two cases. On September 16, 2012, Defendants moved to remand the '13 case 12 13 to state court on the ground that Mr. Pack, as a plaintiff, had no 14 right to remove to federal court. 15 on December 7, 2012.2 That motion was set for hearing On October 24, 2012, Defendants filed a motion to dismiss in 16 17 the '12 case, which was set for hearing on December 7, 2012, and a 18 motion for sanctions in the '13 case, which also was set for 19 hearing on December 7, 2012.3 The thrust of this motion for 20 1 21 22 23 24 25 26 27 28 Pursuant to Federal Rule of Evidence 201, the Court takes judicial notice of the filing date, venue, and case number of Mr. Pack's original state court complaint, as provided in Defendants' unopposed request for judicial notice. Case. No. 12-cv-4513-SC, Dkt. No. 13, Ex. A. 2 The motion to remand was fully briefed. See Case No. 12-cv-4513SC, Dkt. Nos. 12 ("MTR"), 19 ("MTR Opp'n"), 22 ("MTR Reply"). 3 The motion to dismiss was unopposed by Mr. Pack, who, in contravention of this Court's Civil Local Rule 7-3(b), failed to file either an opposition or statement of nonopposition. See Case. No. 12-cv-4512-SC, Dkt. Nos. 28 ("MTD"), 34 ("MTD Reply"). The motion for sanctions filed in the '13 case was fully briefed. See Case. No. 12-cv-4513-SC, Dkt. Nos. 20 ("'13 MFS"), 27 ("'13 MFS Opp'n"), 28 ("'13 MFS Reply"). 2 1 sanctions is that Mr. Pack's removal to federal court was frivolous 2 in light of his status as a plaintiff. See '13 MFS at 3. On November 16, 2012, Defendants filed a second motion for 3 4 sanctions, this time in the '12 case.4 5 for sanctions is that the legal claims asserted in the '12 case are 6 frivolous and presented for an improper purpose. 7 4. See '12 MFS at 3- This motion, too, was set for hearing on December 7, 2012. On December 4, 2012, Mr. Pack filed a notice of voluntary 8 9 The thrust of this motion dismissal in the '12 case. Case. No. 12-cv-4512-SC, Dkt. No. 40. United States District Court For the Northern District of California 10 The same day, Mr. Pack also withdrew a motion to consolidate the 11 '12 and '13 cases which, as Mr. Pack noted, was moot in light of 12 his voluntary dismissal of the '12 case. Case. Nos. 12-cv-4512-SC, 13 Dkt. No. 40; 12-cv-4513-SC, Dkt. No. 31. Mr. Pack's notice stated 14 that "his filings were done and maintained in good faith and with 15 cause -– and that the conduct was never frivolous . . . ." Id. 16 17 II. DISCUSSION 18 A. The '12 Case 19 Mr. Pack is entitled to voluntary dismissal of the '12 case 20 without leave of the Court because he filed his notice of voluntary 21 dismissal before service of an answer in that case or a motion for 22 summary judgment, neither of which Defendants have filed. 23 R. Civ. P. 41(a)(1). 24 administratively terminated. 25 dismissal in the '12 case, Dkt. No. 28, is therefore moot. See Fed. The '12 case is dismissed and shall be The unopposed motion for involuntary 26 27 28 4 The motion for sanctions filed in the '12 case was fully briefed. See Case. No. 12-cv-4512-SC, Dkt. Nos. 35 ("'12 MFS"), 38 ("'12 MFS Opp'n"), 39 ("'12 MFS Reply"). 3 1 However, Mr. Pack's voluntary dismissal of the '12 case does 2 not divest this Court of jurisdiction to hear the motion for 3 sanctions still pending in connection with it. 4 Family Trust v. CIT Group/Consumer Fin., Inc., 205 F. App'x 616, 5 617 (9th Cir. 2006) (citing Cooter & Gell v. Hartmarx Corp., 496 6 U.S. 384, 395 (1990)); see also United States v. Real Prop. Located 7 at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 n.6 (9th 8 Cir. 2008) (affirming Cooter & Gell's holding that district courts 9 may consider collateral issues "such as attorney fees or sanctions" See Williamson United States District Court For the Northern District of California 10 following voluntary dismissal). 11 over Mr. Pack and his counsel for purposes of the pending motion 12 for sanctions filed in the '12 case. 13 opportunity to be heard on that motion and in fact has filed an 14 opposition brief. 15 (due process requires opportunity to be heard but not an oral or 16 evidentiary hearing). 17 disposing of the motion when it resolves the attorney fee award 18 issue detailed below in Section II.B.2. 19 20 21 B. The Court retains jurisdiction Mr. Pack has had an See Williamson Family Trust, 205 F. App'x at 618 The Court will issue a written order The '13 Case 1. Motion to Remand It is undisputed that the case Mr. Pack removed from 22 California state court is one in which he was the plaintiff. 23 However, the plain language of the general federal removal statute 24 authorizes only defendants to remove: 25 26 27 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 28 4 the district and division embracing the place where such action is pending. 1 2 28 U.S.C. § 1441(a) (emphasis added); see also id. § 1446 (setting 3 forth procedures for removal by defendants but omitting any mention 4 of removal by plaintiffs); Wright & Miller, 14C Fed. Prac. & Proc. 5 Juris. § 3730 (4th ed.) ("[P]laintiffs cannot remove[.]"). Mr. Pack's opposition brief is no model of clarity, but he 6 7 appears to argue that removal was warranted because of the 8 "underlying federal nature" of his claims. 9 some cases, the underlying federal nature of a plaintiff's claims It is true that, in United States District Court For the Northern District of California 10 may give a defendant a right to remove to federal court. 11 Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 12 308, 314 (2005) (setting forth test for removal on federal-question 13 grounds of state law claims that embed federal issues). 14 cites no authority, however, for the novel proposition that such 15 claims could give a plaintiff a right to remove, nor is the Court 16 aware of any. 17 Court holds that Mr. Pack, as plaintiff, had no right to remove.5 18 Accordingly, Defendants' motion to remand the '13 case is GRANTED. 2. 19 E.g., Mr. Pack In light of the plain language of § 1441(a), the Motion for Attorney Fees Defendants seek an award of the attorney fees they incurred in 20 21 connection with Mr. Pack's improper removal to federal court. 22 at 7-8; MTR Reply at 3. 23 case "may require payment of just costs and any actual expenses, 24 including attorney fees, incurred as a result of the removal." 25 U.S.C. § 1447(c). 26 attorney's fees under § 1447(c) only where the removing party 27 5 28 MTR An order remanding an improperly removed 28 "Absent unusual circumstances, courts may award Even if Mr. Pack had such a right, which he did not, removal was untimely and procedurally improper for the reasons set forth in Defendants' motion to remand. MTR at 6-7. 5 1 lacked an objectively reasonable basis for seeking removal. 2 Conversely, when an objectively reasonable basis exists, fees 3 should be denied." 4 141 (2005). 5 discretion to consider whether unusual circumstances warrant a 6 departure from the rule in a given case." 7 "is not objectively unreasonable solely because the removing 8 party's arguments lack merit, or else attorney's fees would always 9 be awarded whenever remand is granted." Martin v. Franklin Capital Corp., 546 U.S. 132, "In applying this rule, district courts retain Id. Removal, however, Lussier v. Dollar Tree United States District Court For the Northern District of California 10 Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). 11 objective reasonableness of removal depends on the clarity of the 12 applicable law and whether such law "clearly foreclosed" the 13 arguments in support of removal. 14 Instead, the Id. at 1066–67. This case presents a paradigmatic example of objectively 15 unreasonable removal. As a preliminary matter, the Court notes 16 that Mr. Pack is represented by counsel and therefore not entitled 17 to the lenience afforded unrepresented litigants. 18 Sav. & Loan Ass'n v. Kunewa, C 12-1069 CW, 2012 WL 1222889, at *2 19 (N.D. Cal. Apr. 11, 2012) (explaining that, with respect to § 20 1447(c) attorney fee requests, courts give "significant weight" to 21 a removing party's pro se status; collecting cases). 22 the question of whether plaintiffs may remove their own cases to 23 federal court is neither complex nor novel. 24 language of a federal statute whose basic contours have been 25 settled for 125 years. 26 Juris. § 3721 (4th ed.) (§ 1441 "is closely patterned after" an 27 1887 law that "limited the right of removal to defendants"). 28 Clearer authority would be hard to come by. Cf. Astoria Fed. In this case, It turns on the plain See Wright & Miller, 14B Fed. Prac. & Proc. 6 Further, this authority clearly foreclosed any argument that a 1 2 plaintiff such as Mr. Pack could make in support of removal. Even 3 a desultory consultation of the applicable statutes would have 4 revealed to Mr. Pack and his counsel that, as a plaintiff, he was 5 not permitted to remove. 6 removal by defendants but silent as to plaintiffs). See 28 U.S.C. §§ 1441, 1446 (authorizing 7 The Court would be acting within its discretion to deny 8 Defendants' request for the attorney fees incurred in connection 9 with remand, but doing so would fail to deter objectively United States District Court For the Northern District of California 10 unreasonable removals like the one that occurred in this case. Mr. 11 Pack's removal has squandered valuable resources -- this Court's, 12 the state court's, and Defendants'. Accordingly, the Court GRANTS Defendants' motion for attorney 13 14 fees incurred in connection with removal to this Court. The Court, 15 however, DEFERS ruling on the amount of the attorney fee award and 16 ORDERS supplemental briefing on that issue, as well as the issue of 17 who should pay -- Mr. Pack, his counsel, or both.6 18 ORDERS Mr. Pack's counsel, Russell A. Robinson (SBN 163937), to 19 provide a true and complete copy of this Order to Mr. Pack and to The Court also 20 6 21 22 23 24 25 26 27 28 Defendants seek attorney fees in the amount of "at least $13,941.00" from Mr. Pack "and/or" his counsel. MTR Reply at 3. The request is problematic for two reasons. First, "and/or" will not do. Defendants must articulate a principled, reasonable basis for why Mr. Pack, his lawyer, or both should be made to pay the attorney fee award. Second, although Defendants have submitted declarations concerning the number of hours their lawyers spent and the fees incurred, that is not all that is required. For example, "the party seeking an award of attorneys' fees bears the burden of producing 'satisfactory evidence -- in addition to the attorney's own affidavits -- that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Andrews v. Lawrence Livermore Nat. Sec., LLC, C 11-3930 CW, 2012 WL 160117, at *1 (N.D. Cal. Jan. 18, 2012)(emphasis added) (quoting Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008)). 7 1 electronically file with this Court a declaration confirming he has 2 done so within five (5) days of the signature date of this Order. 3 4 5 III. CONCLUSION For the foregoing reasons, the Court orders the Clerk to 6 TERMINATE Case No. 12-cv-4512-SC. 7 now-moot motion to dismiss pending in that case, Dkt. No. 28, but 8 shall not terminate the pending motion for sanctions, Dkt. No. 35, 9 over which this Court retains jurisdiction. United States District Court For the Northern District of California 10 The Clerk shall terminate the The Court GRANTS Defendants' motion to remand Case No. 12-cv- 11 4513-SC. That case is hereby REMANDED to the California Superior 12 Court for Alameda County, where it bore case number RG11556084. 13 The Court, however, retains jurisdiction over the motion for 14 sanctions pending in that case, Dkt. No. 20, which shall not be 15 terminated. 16 The Court DEFERS ruling on both sanctions motions. 17 The Court GRANTS Defendants' motion for attorney fees incurred 18 as a result of Plaintiff Robert Pack's objectively unreasonable 19 removal to federal court. 20 (1) the size of the award and (2) whether Mr. Pack or his counsel, 21 Russell A. Robinson, or both, must pay the award. 22 supplemental briefing on those issues, as follows: 23 • The Court DEFERS ruling on the issues of The Court ORDERS Defendants shall electronically file a brief of no more 24 than eight (8) pages, exclusive of supporting evidentiary 25 materials. 26 from the signature date of this Order. 27 28 • Defendants' brief is due twenty-one (21) days Mr. Pack may electronically file a responsive brief of no more than six (6) pages, exclusive of supporting 8 1 evidentiary materials. 2 seven (7) days after Defendants electronically file their 3 brief. 4 Mr. Pack's brief, if any, is due Mr. Robinson shall, within five (5) days of the signature date 5 of this Order, provide a true and complete copy of this Order to 6 Mr. Pack and electronically file with the Court a declaration that 7 he has done so. 8 9 IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 12 Dated: December 7, 2012 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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