ING Bank FSB et al v. Pineda

Filing 12

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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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 ING BANK, FSB, 5 Plaintiff, 6 7 8 9 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. 10 Defendants Raul and Graciela Pineda (collectively, "Defendants") removed this case from Northern District of California United States District Court 11 the Superior Court of the State of California, County of Alameda ("Alameda County Superior 12 Court") on July 19, 2012. (Dkt. No. 1, "Notice of Removal of Action to United States District 13 Court" ("Removal Notice") at 1.) Plaintiff filed the instant Motion to Remand Action to State 14 Court on July 25, 2012. (Dkt. No. 9 ("Motion").) On the same day, Plaintiff filed an Application 15 for Order Remanding Action or Shortening Time for Hearing on Motion to Remand Action to State 16 Court. (Dkt. No. 10 (“Application to Shorten Time”).) 17 Defendants asserted removal was proper based on federal question jurisdiction. Id. at 2. 18 Pursuant to 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district 19 courts of the United States have original jurisdiction, may be removed by the defendant or the 20 defendants, to the district court of the United States for the district and division embracing the place 21 where such action is pending." 28 U.S.C. § 1441(a). Under 28 U.S.C. § 1331, a district court has 22 original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the 23 United States." 28 U.S.C. § 1331. The burden of establishing federal jurisdiction is on the party 24 seeking removal, and courts strictly construe the removal statute against removal jurisdiction. Gaus 25 v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (internal citations omitted). Accordingly, 26 "federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first 27 instance." Id. at 566. A district court must remand the case to state court if it appears at any time 28 1 before final judgment that the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). 2 Further, a defendant may not twice remove the same action where each removal is based on the 3 same grounds. St. Paul & C. Ry. Co. v. McLean, 108 U.S. 212, 217 (1883); Midlock v. Apple 4 Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005) (there must be intervening events justifying 5 the second removal); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492-93 (5th Cir. 1996) 6 (defendants are generally prohibited from seeking a second removal on the same ground, i.e., the 7 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 10 Case (“Prior Remand Order”). However, as Plaintiff's Motion indicates, Judge Breyer ordered the 11 Northern District of California Defendants previously removed this case to federal court based on diversity jurisdiction on 9 United States District Court 8 case remanded on June 8, 2012. Mot. at 3; Prior Remand Order at 2. In that order, Judge Breyer 12 found that neither federal question jurisdiction nor diversity jurisdiction was proper based on the 13 face of Plaintiff's well-pleaded complaint, which alleged only an unlawful detainer claim. Prior 14 Remand Order at 2. This Court has reviewed the Complaint in this action and finds it identical to 15 that previously before Judge Breyer. (Compare Dkt. No. 9-3, attached to Declaration of Jonathan 16 Seigel in Support of Plaintiff Bank, F.S.B.'s Motion ("Seigel Decl.") as Ex. 1, "Complaint for 17 Unlawful Detainer - Limited" with Dkt. No. 9-5, Seigel Decl., Ex. 3 (prior notice of removal with 18 complaint).) The only apparent difference between this case and that before Judge Breyer is that 19 Defendants now allege removal based on federal question jurisdiction rather than diversity 20 jurisdiction. See Removal Notice at 2. 21 Federal question jurisdiction exists only when a federal question exists on the face of a well- 22 pleaded complaint. See Wayne v. DHL Worldwide Express, 294 F.3d 179, 1183 (9th Cir. 2002). 23 As Judge Breyer previously held with regard to the same Complaint, no federal question is apparent 24 from the face of Plaintiff's Complaint for Unlawful Detainer. Prior Remand Order at 2. The fact 25 that Defendants now explicitly raise federal question jurisdiction rather than diversity jurisdiction 26 does not change this. Further, Defendants were barred from removing this action by their earlier 27 removal based on the exact same Complaint. Consequently, Plaintiff's Motion to Remand is 28 GRANTED. The Court DENIES AS MOOT Plaintiff's Application to Shorten Time. 2 1 Pursuant to 28 U.S.C. § 1447(c), an order remanding a case may require payment of "just 2 costs and any actual expenses, including attorney fees, incurred as a result of removal." 28 U.S.C. 3 § 1447(c). Plaintiff’s counsel’s total estimated fees in connection with the instant Motion and 4 accompanying documents is $1,347.50. Mot. at 6; Seigel Decl. ¶ 9. 5 "[A]bsent unusual circumstances, attorney's fees should not be awarded when the removing 6 party has an objectively reasonable basis for removal." Martin v. Franklin Capital Corp., 546 U.S. 7 132, 136 (2005). "The appropriate test for awarding fees under § 1447(c) should recognize the 8 desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the 9 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, 11 United States District Court 10 Defendants were already aware from the Prior Remand Order that no federal question jurisdiction 12 existed. Consequently, as in the Prior Remand Order, the Court finds that there was no objectively 13 reasonable basis for removal. 14 Plaintiff's request for $1,347.50 in fees is based on a billing rate of $275.00 per hour 15 multiplied by 4.9 hours, of which 2.1 hours were spent drafting Plaintiff's moving papers, 0.8 hours 16 were spent “drafting Plaintiff's Application for Remand,” and 2.0 hours which were anticipated to 17 be spent reviewing Plaintiff's opposition papers and drafting Plaintiff's reply brief. Seigel Decl. ¶ 9. 18 The Court calculates the award based only on time spent drafting the instant Motion. The Court 19 therefore GRANTS Plaintiff's request for attorney's fees and Plaintiff is awarded fees in the amount 20 of $577.50. 21 For the foregoing reasons, this action is hereby REMANDED to the Alameda County 22 Superior Court. This Order terminates Dkt. Nos. 9 and 10. The pending Applications to Proceed in 23 Forma Pauperis by Defendants (Dkt. Nos. 2–3) are DENIED AS MOOT based on this Order. 24 25 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. 26 27 28 3 1 IT IS SO ORDERED. 2 3 4 Dated: July 27, 2012 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 5 6 7 8 9 10 Northern District of California United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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