Haw v. Howard

Filing 13


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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 United States District Court For the Northern District of California 10 11 12 No. C 13-357 SI Related case: C 12-5167 SI JEFFREY HAW, Plaintiff, ORDER GRANTING UNOPPOSED MOTION FOR ATTORNEY FEES v. JOHN HOWARD, 13 Defendant. / 14 15 Plaintiff’s motion for attorney’s fees is scheduled for a hearing on March 22, 2013. Defendant 16 has not filed an opposition to the motion. Pursuant to Civil Local Rule 7-1(b), the Court determines that 17 the matter is appropriate for resolution without oral argument, and VACATES the hearing. For the 18 reasons set forth below, the Court GRANTS plaintiff’s motion and awards plaintiff $3,172 in attorney’s 19 fees. 20 21 DISCUSSION 22 On December 13, 2012, this Court remanded Haw v. Howard, C 12-5167 SI (Alameda County 23 Superior Court Case No. RG 12646031), to state court, finding that this Court lacked jurisdiction over 24 that unlawful detainer case. The Court denied plaintiff’s request for attorney’s fees incurred in 25 connection with the improper removal. 26 On January 25, 2013, defendant again removed the same unlawful detainer action, Haw v. 27 Howard, C 13-357 SI (Alameda County Superior Court Case No. RG 12646031), asserting the same 28 defective grounds for jurisdiction that defendant previously asserted in C 12-5167 SI. Compare Docket 1 No. 1 in C 12-5167 SI and Docket No. No. 1 in C 13-357 SI. In an order filed February 12, 2013, the 2 Court remanded this case to state court. 3 On February 12, 2013, plaintiff filed a motion for attorney’s fees. Plaintiff seeks $3,172 in 4 attorney’s fees incurred in connection with the second improper removal. Plaintiff’s lawyer has 5 submitted a declaration stating that he spent 12.2 hours at a rate of $260 an hour researching and 6 preparing the notice of motion of related case, and the notice and motion to remand. Tubman Decl. ¶ 9. 7 Counsel states that he practices almost exclusively in state court, and that he required time to become 8 familiar with the federal rules. Defendant’s opposition to the fee motion was due March 8, 2013, and 9 defendant did not file an opposition. United States District Court For the Northern District of California 10 Courts may award attorney’s fees under 28 U.S.C. § 1447(c) “where the removing party lacked 11 an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 12 141 (2005).1 The Court finds that defendant lacked an objectively reasonable basis for removing this 13 unlawful detainer action because defendant asserted the same improper bases for removal in the second 14 removal that the Court had already found insufficient for the first removal. Cf. Knudsen v. Liberty Mut. 15 Ins. Co., 435 F.3d 755, 757 (7th Cir. 2006) (stating that “[a] second removal is proper when based on 16 a new development”). Accordingly, the Court finds it appropriate to award plaintiff attorney’s fees, and 17 GRANTS plaintiff’s motion. 18 This order resolves Docket No. 8. 19 20 IT IS SO ORDERED. 21 22 Dated: March 18, 2013 SUSAN ILLSTON United States District Judge 23 24 25 26 1 27 28 Attorney’s fees may be awarded in an order to remand or anytime thereafter. Moore v. Permanente Medical Group. Inc., 981 F.2d 443, 445 (9th Cir. 1992) (concluding that “an award of attorney’s fees is a collateral matter over which a court normally retains jurisdiction even after being divested of jurisdiction on the merits”). 2

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