ING Bank FSB et al v. Pineda
Filing
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ORDER by Judge Yvonne Gonzalez Rogers granting 9 Motion to Remand; finding as moot 10 Ex Parte Application to Shorten Time. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 7/27/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ING BANK, FSB,
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Plaintiff,
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Case No.: 12-CV-03782-YGR
ORDER GRANTING PLAINTIFF'S MOTION TO
REMAND ACTION TO STATE COURT
vs.
RAUL R. PINEDA AND GRACIELA PINEDA,
Defendants.
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Defendants Raul and Graciela Pineda (collectively, "Defendants") removed this case from
Northern District of California
United States District Court
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the Superior Court of the State of California, County of Alameda ("Alameda County Superior
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Court") on July 19, 2012. (Dkt. No. 1, "Notice of Removal of Action to United States District
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Court" ("Removal Notice") at 1.) Plaintiff filed the instant Motion to Remand Action to State
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Court on July 25, 2012. (Dkt. No. 9 ("Motion").) On the same day, Plaintiff filed an Application
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for Order Remanding Action or Shortening Time for Hearing on Motion to Remand Action to State
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Court. (Dkt. No. 10 (“Application to Shorten Time”).)
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Defendants asserted removal was proper based on federal question jurisdiction. Id. at 2.
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Pursuant to 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district
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courts of the United States have original jurisdiction, may be removed by the defendant or the
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defendants, to the district court of the United States for the district and division embracing the place
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where such action is pending." 28 U.S.C. § 1441(a). Under 28 U.S.C. § 1331, a district court has
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original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the
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United States." 28 U.S.C. § 1331. The burden of establishing federal jurisdiction is on the party
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seeking removal, and courts strictly construe the removal statute against removal jurisdiction. Gaus
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v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (internal citations omitted). Accordingly,
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"federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first
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instance." Id. at 566. A district court must remand the case to state court if it appears at any time
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before final judgment that the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c).
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Further, a defendant may not twice remove the same action where each removal is based on the
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same grounds. St. Paul & C. Ry. Co. v. McLean, 108 U.S. 212, 217 (1883); Midlock v. Apple
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Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005) (there must be intervening events justifying
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the second removal); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492-93 (5th Cir. 1996)
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(defendants are generally prohibited from seeking a second removal on the same ground, i.e., the
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same pleading or event that made the case removable).
May 14, 2012. ING Bank, FSB v. Pineda, No. C 12-02418 CRB, Dkt. No. 14 (Order Remanding
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Case (“Prior Remand Order”). However, as Plaintiff's Motion indicates, Judge Breyer ordered the
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Northern District of California
Defendants previously removed this case to federal court based on diversity jurisdiction on
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United States District Court
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case remanded on June 8, 2012. Mot. at 3; Prior Remand Order at 2. In that order, Judge Breyer
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found that neither federal question jurisdiction nor diversity jurisdiction was proper based on the
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face of Plaintiff's well-pleaded complaint, which alleged only an unlawful detainer claim. Prior
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Remand Order at 2. This Court has reviewed the Complaint in this action and finds it identical to
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that previously before Judge Breyer. (Compare Dkt. No. 9-3, attached to Declaration of Jonathan
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Seigel in Support of Plaintiff Bank, F.S.B.'s Motion ("Seigel Decl.") as Ex. 1, "Complaint for
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Unlawful Detainer - Limited" with Dkt. No. 9-5, Seigel Decl., Ex. 3 (prior notice of removal with
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complaint).) The only apparent difference between this case and that before Judge Breyer is that
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Defendants now allege removal based on federal question jurisdiction rather than diversity
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jurisdiction. See Removal Notice at 2.
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Federal question jurisdiction exists only when a federal question exists on the face of a well-
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pleaded complaint. See Wayne v. DHL Worldwide Express, 294 F.3d 179, 1183 (9th Cir. 2002).
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As Judge Breyer previously held with regard to the same Complaint, no federal question is apparent
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from the face of Plaintiff's Complaint for Unlawful Detainer. Prior Remand Order at 2. The fact
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that Defendants now explicitly raise federal question jurisdiction rather than diversity jurisdiction
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does not change this. Further, Defendants were barred from removing this action by their earlier
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removal based on the exact same Complaint. Consequently, Plaintiff's Motion to Remand is
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GRANTED. The Court DENIES AS MOOT Plaintiff's Application to Shorten Time.
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Pursuant to 28 U.S.C. § 1447(c), an order remanding a case may require payment of "just
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costs and any actual expenses, including attorney fees, incurred as a result of removal." 28 U.S.C.
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§ 1447(c). Plaintiff’s counsel’s total estimated fees in connection with the instant Motion and
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accompanying documents is $1,347.50. Mot. at 6; Seigel Decl. ¶ 9.
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"[A]bsent unusual circumstances, attorney's fees should not be awarded when the removing
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party has an objectively reasonable basis for removal." Martin v. Franklin Capital Corp., 546 U.S.
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132, 136 (2005). "The appropriate test for awarding fees under § 1447(c) should recognize the
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desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the
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opposing party, while not undermining Congress' basic decision to afford Defendants a right to
Northern District of California
remove as a general matter, when the statutory criteria are satisfied." Id. at 140. In this case,
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United States District Court
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Defendants were already aware from the Prior Remand Order that no federal question jurisdiction
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existed. Consequently, as in the Prior Remand Order, the Court finds that there was no objectively
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reasonable basis for removal.
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Plaintiff's request for $1,347.50 in fees is based on a billing rate of $275.00 per hour
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multiplied by 4.9 hours, of which 2.1 hours were spent drafting Plaintiff's moving papers, 0.8 hours
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were spent “drafting Plaintiff's Application for Remand,” and 2.0 hours which were anticipated to
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be spent reviewing Plaintiff's opposition papers and drafting Plaintiff's reply brief. Seigel Decl. ¶ 9.
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The Court calculates the award based only on time spent drafting the instant Motion. The Court
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therefore GRANTS Plaintiff's request for attorney's fees and Plaintiff is awarded fees in the amount
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of $577.50.
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For the foregoing reasons, this action is hereby REMANDED to the Alameda County
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Superior Court. This Order terminates Dkt. Nos. 9 and 10. The pending Applications to Proceed in
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Forma Pauperis by Defendants (Dkt. Nos. 2–3) are DENIED AS MOOT based on this Order.
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The Clerk of this Court is further ordered to forward certified copies of this Order and all
docket entries to the Clerk of the Alameda County Superior Court.
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IT IS SO ORDERED.
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Dated: July 27, 2012
_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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Northern District of California
United States District Court
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