Scott v. Kenna et al

Filing 26

ORDER by Judge Charles R. Breyer GRANTING 9 Motion to Remand; finding as MOOT 6 Motion to Compel; GRANTING petition for attorneys' fees; VACATING hearing of October 10, 2014 (crblc2, COURT STAFF) (Filed on 9/26/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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URIEL SCOTT,
Plaintiff,

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No. 3:14-cv-03362-CRB

v.
TRADEHILL, INC.,; JERED KENNA, et al.,
Defendants.

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/

ORDER GRANTING MOTION TO
REMAND TO STATE COURT;
DISMISSING AS MOOT THE MOTION
TO COMPEL ARBITRATION OR, IN
THE ALTERNATIVE, TO DISMISS;
GRANTING PETITION FOR
ATTORNEYS’ FEES; AND VACATING
HEARING

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The parties having stipulated, and this Court agreeing, that Defendant’s notice of

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removal was improper under 28 U.S.C. § 1441(b)(2) because the Defendant seeking removal

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is a California resident who was properly served, the Court hereby GRANTS Plaintiff’s

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Motion to Remand this action to California Superior Court for the County of San Francisco

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for further proceedings under Case No. CGC-14-537293. (Dkt. 9). Defendant Jered Kenna

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shall provide notice to all parties of this Order and file it with the clerk of the Superior Court

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within 5 days. With the underlying action remanded to state court, the pending Motion to

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Compel Arbitration or, in the Alternative, Motion to Dismiss (Dkt. 6) is DISMISSED AS

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MOOT.

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Plaintiff Uriel Scott also moves for just costs and actual expenses incurred in the

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improper removal. “An order remanding the case may require payment of just costs and any

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actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C.

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§ 1447(c). “Absent unusual circumstances, courts may award attorney’s fees under

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§ 1447(c) only where the removing party lacked an objectively reasonable basis for seeking

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removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). “Conversely, when

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an objectively reasonable basis exists, fees should be denied.” Id. The objective

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reasonableness of removal depends on whether applicable law“clearly foreclosed” the

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arguments in support of removal. See Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062,

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1066–67 (9th Cir. 2008).

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No objectively reasonable basis for seeking removal existed here, where it is
undisputed that Defendant Jered Kenna is a citizen of the state in which the action was

United States District Court
For the Northern District of California

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brought and therefore disqualified by 28 U.S.C. § 1441(b)(2) from removing the case. Resp.

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to Mot. to Remand (Dkt. 24) at 1. Plaintiff’s entitlement to fees here “is not a punitive award

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against defendants; it is simply reimbursement to plaintiffs of wholly unnecessary litigation

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costs the defendant inflicted.” Moore v. Permanente Medical Group, Inc., 981 F. 2d 443,

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447 (9th Cir. 1992). Plaintiff’s counsel asserts that as a result of the improper removal, he

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expended three (3) hours drafting, serving, and filing the instant motion. Yi Decl. ¶ 7. The

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hearing on this motion currently scheduled for October 10, 2014, being hereby VACATED,

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the additional one (1) hour Plaintiff’s counsel expected to spend appearing at the hearing, id.,

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will not be necessary. Plaintiff’s counsel’s hourly billing rate is $295. Id. Both the time

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expended and billing rate appearing wholly reasonable, this Court GRANTS Plaintiff’s

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petition and ORDERS Defendant Jered Kenna to pay attorneys’ fees and costs to Hedani,

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Choy, Spalding & Salvigione Trust Account in the sum of $885.

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IT IS SO ORDERED.

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Dated: September 26, 2014
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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