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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT PACK,
Plaintiff,
v.

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For the Northern District of California

United States District Court

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HOGE FENTON JONES & APPEL, INC.,
et al.,

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Defendants.

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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

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For the reasons set forth below, the Court terminates Case No.

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12-cv-4512-SC and remands Case No. 12-cv-4513-SC but retains

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jurisdiction over the pending motions for sanctions that have been

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filed in both cases.

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attorney fees incurred as a result of removal, but defers ruling on

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the amount of the award and the question of who must pay.

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Court orders supplemental briefing on those issues.

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argument shall be held in these matters.

The Court also grants Defendants' request for

The

No oral

Civ. L.R. 7-1(b).

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I.

BACKGROUND
Plaintiff Robert Pack has filed two civil cases against Hoge

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Fenton Jones & Appel, Inc., a law firm that formerly represented

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him, and attorneys affiliated with the firm (collectively,

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"Defendants").

Case Nos. 12-cv-4512-SC (the "'12 case"), 12-cv-

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4513-SC (the "'13 case").

In the '12 case, Mr. Pack asserts claims

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for fraud, breach of contract, breach of the implied covenant of

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good faith and fair dealing, and violations of the civil RICO

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statute, 18 U.S.C. § 1962.

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claims for legal malpractice and breach of fiduciary duty.

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case was originally filed in the California Superior Court for

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Alameda County on January 14, 2011 and assigned case number

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RG11556084.1

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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

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For the Northern District of California

The '13

filed the '12 case, i.e., August 28, 2012.

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On September 19, 2012,

the Court related the two cases.
On September 16, 2012, Defendants moved to remand the '13 case

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to state court on the ground that Mr. Pack, as a plaintiff, had no

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right to remove to federal court.

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on December 7, 2012.2

That motion was set for hearing

On October 24, 2012, Defendants filed a motion to dismiss in

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the '12 case, which was set for hearing on December 7, 2012, and a

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motion for sanctions in the '13 case, which also was set for

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hearing on December 7, 2012.3

The thrust of this motion for

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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.
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The motion to remand was fully briefed. See Case No. 12-cv-4513SC, Dkt. Nos. 12 ("MTR"), 19 ("MTR Opp'n"), 22 ("MTR Reply").

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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").

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sanctions is that Mr. Pack's removal to federal court was frivolous

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in light of his status as a plaintiff.

See '13 MFS at 3.

On November 16, 2012, Defendants filed a second motion for

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sanctions, this time in the '12 case.4

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for sanctions is that the legal claims asserted in the '12 case are

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frivolous and presented for an improper purpose.

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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

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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

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The same day, Mr. Pack also withdrew a motion to consolidate the

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'12 and '13 cases which, as Mr. Pack noted, was moot in light of

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his voluntary dismissal of the '12 case.

Case. Nos. 12-cv-4512-SC,

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Dkt. No. 40; 12-cv-4513-SC, Dkt. No. 31.

Mr. Pack's notice stated

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that "his filings were done and maintained in good faith and with

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cause -– and that the conduct was never frivolous . . . ."

Id.

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II.

DISCUSSION

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A.

The '12 Case

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Mr. Pack is entitled to voluntary dismissal of the '12 case

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without leave of the Court because he filed his notice of voluntary

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dismissal before service of an answer in that case or a motion for

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summary judgment, neither of which Defendants have filed.

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R. Civ. P. 41(a)(1).

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administratively terminated.

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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

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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").

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However, Mr. Pack's voluntary dismissal of the '12 case does

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not divest this Court of jurisdiction to hear the motion for

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sanctions still pending in connection with it.

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Family Trust v. CIT Group/Consumer Fin., Inc., 205 F. App'x 616,

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617 (9th Cir. 2006) (citing Cooter & Gell v. Hartmarx Corp., 496

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U.S. 384, 395 (1990)); see also United States v. Real Prop. Located

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at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 n.6 (9th

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Cir. 2008) (affirming Cooter & Gell's holding that district courts

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may consider collateral issues "such as attorney fees or sanctions"

See Williamson

United States District Court

For the Northern District of California

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following voluntary dismissal).

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over Mr. Pack and his counsel for purposes of the pending motion

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for sanctions filed in the '12 case.

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opportunity to be heard on that motion and in fact has filed an

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opposition brief.

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(due process requires opportunity to be heard but not an oral or

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evidentiary hearing).

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disposing of the motion when it resolves the attorney fee award

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issue detailed below in Section II.B.2.

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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
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Motion to Remand

It is undisputed that the case Mr. Pack removed from

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California state court is one in which he was the plaintiff.

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However, the plain language of the general federal removal statute

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authorizes only defendants to remove:

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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

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the district and division embracing the place
where such action is pending.

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28 U.S.C. § 1441(a) (emphasis added); see also id. § 1446 (setting

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forth procedures for removal by defendants but omitting any mention

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of removal by plaintiffs); Wright & Miller, 14C Fed. Prac. & Proc.

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Juris. § 3730 (4th ed.) ("[P]laintiffs cannot remove[.]").
Mr. Pack's opposition brief is no model of clarity, but he

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appears to argue that removal was warranted because of the

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"underlying federal nature" of his claims.

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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

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may give a defendant a right to remove to federal court.

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Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.

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308, 314 (2005) (setting forth test for removal on federal-question

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grounds of state law claims that embed federal issues).

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cites no authority, however, for the novel proposition that such

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claims could give a plaintiff a right to remove, nor is the Court

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aware of any.

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Court holds that Mr. Pack, as plaintiff, had no right to remove.5

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Accordingly, Defendants' motion to remand the '13 case is GRANTED.
2.

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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

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connection with Mr. Pack's improper removal to federal court.

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at 7-8; MTR Reply at 3.

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case "may require payment of just costs and any actual expenses,

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including attorney fees, incurred as a result of the removal."

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U.S.C. § 1447(c).

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

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MTR

An order remanding an improperly removed

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"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.

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lacked an objectively reasonable basis for seeking removal.

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Conversely, when an objectively reasonable basis exists, fees

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should be denied."

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141 (2005).

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discretion to consider whether unusual circumstances warrant a

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departure from the rule in a given case."

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"is not objectively unreasonable solely because the removing

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party's arguments lack merit, or else attorney's fees would always

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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

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Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008).

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objective reasonableness of removal depends on the clarity of the

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applicable law and whether such law "clearly foreclosed" the

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arguments in support of removal.

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Instead, the

Id. at 1066–67.

This case presents a paradigmatic example of objectively

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unreasonable removal.

As a preliminary matter, the Court notes

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that Mr. Pack is represented by counsel and therefore not entitled

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to the lenience afforded unrepresented litigants.

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Sav. & Loan Ass'n v. Kunewa, C 12-1069 CW, 2012 WL 1222889, at *2

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(N.D. Cal. Apr. 11, 2012) (explaining that, with respect to §

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1447(c) attorney fee requests, courts give "significant weight" to

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a removing party's pro se status; collecting cases).

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the question of whether plaintiffs may remove their own cases to

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federal court is neither complex nor novel.

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language of a federal statute whose basic contours have been

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settled for 125 years.

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Juris. § 3721 (4th ed.) (§ 1441 "is closely patterned after" an

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1887 law that "limited the right of removal to defendants").

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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.

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Further, this authority clearly foreclosed any argument that a

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plaintiff such as Mr. Pack could make in support of removal.

Even

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a desultory consultation of the applicable statutes would have

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revealed to Mr. Pack and his counsel that, as a plaintiff, he was

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not permitted to remove.

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removal by defendants but silent as to plaintiffs).

See 28 U.S.C. §§ 1441, 1446 (authorizing

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The Court would be acting within its discretion to deny

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Defendants' request for the attorney fees incurred in connection

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with remand, but doing so would fail to deter objectively

United States District Court

For the Northern District of California

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unreasonable removals like the one that occurred in this case.

Mr.

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Pack's removal has squandered valuable resources -- this Court's,

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the state court's, and Defendants'.
Accordingly, the Court GRANTS Defendants' motion for attorney

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fees incurred in connection with removal to this Court.

The Court,

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however, DEFERS ruling on the amount of the attorney fee award and

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ORDERS supplemental briefing on that issue, as well as the issue of

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who should pay -- Mr. Pack, his counsel, or both.6

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ORDERS Mr. Pack's counsel, Russell A. Robinson (SBN 163937), to

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provide a true and complete copy of this Order to Mr. Pack and to

The Court also

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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)).

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electronically file with this Court a declaration confirming he has

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done so within five (5) days of the signature date of this Order.

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III. CONCLUSION
For the foregoing reasons, the Court orders the Clerk to

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TERMINATE Case No. 12-cv-4512-SC.

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now-moot motion to dismiss pending in that case, Dkt. No. 28, but

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shall not terminate the pending motion for sanctions, Dkt. No. 35,

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over which this Court retains jurisdiction.

United States District Court

For the Northern District of California

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The Clerk shall terminate the

The Court GRANTS Defendants' motion to remand Case No. 12-cv-

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4513-SC.

That case is hereby REMANDED to the California Superior

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Court for Alameda County, where it bore case number RG11556084.

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The Court, however, retains jurisdiction over the motion for

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sanctions pending in that case, Dkt. No. 20, which shall not be

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terminated.

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The Court DEFERS ruling on both sanctions motions.

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The Court GRANTS Defendants' motion for attorney fees incurred

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as a result of Plaintiff Robert Pack's objectively unreasonable

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removal to federal court.

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(1) the size of the award and (2) whether Mr. Pack or his counsel,

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Russell A. Robinson, or both, must pay the award.

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supplemental briefing on those issues, as follows:

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•

The Court DEFERS ruling on the issues of

The Court ORDERS

Defendants shall electronically file a brief of no more

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than eight (8) pages, exclusive of supporting evidentiary

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materials.

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from the signature date of this Order.

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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

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evidentiary materials.

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seven (7) days after Defendants electronically file their

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brief.

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Mr. Pack's brief, if any, is due

Mr. Robinson shall, within five (5) days of the signature date

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of this Order, provide a true and complete copy of this Order to

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Mr. Pack and electronically file with the Court a declaration that

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he has done so.

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IT IS SO ORDERED.

United States District Court

For the Northern District of California

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Dated: December 7, 2012
UNITED STATES DISTRICT JUDGE

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