Deutsche Bank National Trust Company v. Chappell

Filing 15

ORDER ADOPTING MAGISTRATE JUDGE'S 12 REPORT AND RECOMMENDATION, REMANDING CASE, DENYING 7 MOTION TO REMAND AS MOOT, GRANTING PLAINTIFF'S REQUEST FOR ATTORNEYS' FEES, IN PART, AND DENYING DEFENDANT'S 4 APPLICATION TO PROCEED IN FORMA PAUPERIS. Signed by Judge Claudia Wilken on 10/28/2011. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 10/28/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DEUTSCHE BANK NATIONAL TRUST,

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Plaintiff,

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ORDER ADOPTING
MAGISTRATE JUDGE'S
REPORT AND
RECOMMENDATION,
REMANDING CASE,
DENYING MOTION TO
REMAND AS MOOT,
GRANTING PLAINTIFF'S
REQUEST FOR ATTORNEYS'
FEES, IN PART, AND
DENYING DEFENDANT'S
APPLICATION TO PROCEED
IN FORMA PAUPERIS

v.
ROBERT S. CHAPPELL,

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No. C 11-4640 CW

Defendant.
________________________________/

United States District Court
For the Northern District of California

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This is an unlawful detainer action that was filed by

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Plaintiff Deutsche Bank in state court.

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Chappell, who applies to proceed in forma pauperis (IFP), removed

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it.

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issued an order to show cause (OSC) why the case should not be

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remanded for lack of federal jurisdiction.

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judge issued the OSC, Plaintiff filed a motion to remand, in which

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it requested attorneys' fees for defending against the frivolous

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removal.

Defendant has not filed an opposition to the motion to

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remand.

On October 7, 2011, the magistrate judge filed a report

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and recommendation finding no ground for removal and recommending

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that the case be remanded to the Contra Costa County Superior

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Court.

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undersigned district judge.

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Defendant Robert

The removed case was assigned to a magistrate judge who

Before the magistrate

On October 11, 2011, the case was reassigned to the

The Court has reviewed the magistrate judge's order and finds
that it is well-reasoned and correctly decided.

Therefore, the

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Court adopts the report and recommendation of the magistrate judge

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and remands the case to the Contra County Superior Court.

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The issue of Plaintiff's attorneys' fees was not before the

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magistrate judge.

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fees thus far and foresees that it will incur another $2,100 if it

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has to respond to Plaintiff's opposition to its remand motion and

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appear before the Court to argue the motion.

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basis for removing this action, the Court grants Plaintiff's

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motion for attorneys' fees and awards the $700 that it has

Plaintiff states that it incurred $700 in legal

Because there was no

United States District Court
For the Northern District of California

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incurred thus far in defending the improper removal.

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U.S.C. § 1447(c) (court may order defendant to pay plaintiff's

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just costs, including attorneys' fees, incurred as a result of

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removal); Moore v. Permanente Medical Gp., Inc., 981 F.2d 443, 447

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(9th Cir. 1992) (district court has wide discretion to award fees

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in removal cases).

See 28

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The Court denies Defendant's application to proceed IFP. The

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Ninth Circuit has indicated that leave to proceed IFP pursuant to

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28 U.S.C. § 1915(a) is properly granted only when the plaintiff

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has demonstrated poverty and has presented a claim that is not

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factually or legally frivolous within the definition of

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§ 1915(e)(2)(B).

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1990); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370

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(9th Cir. 1987).

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he works at Home Depot where he earns $1,700 net per month.

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also indicates that he receives veterans' payments, but does not

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indicate the amount.

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Court finds that Defendant does not qualify for IFP status.

O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.

In his IFP application, Defendant indicates that
He

Based on this financial information, the

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In summary, the Court adopts the magistrate judge's report

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and recommendation (docket no. 12), remands the case to the Contra

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Costa County Superior Court, denies the motion to remand as moot

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(docket no. 7), grants Plaintiff $700 in attorneys' fees and

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denies Defendant's application to proceed IFP (docket no. 4).

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Defendant must pay Plaintiff $700 within fourteen days of the date

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of this Order.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: 10/28/2011

CLAUDIA WILKEN
United States District Judge

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