Bosio et al v. Lemke

Filing 10

ORDER Remanding Case re #2 Motion to Remand; #3 Motion to Remand. The Court grants Plaintiffs Motions and remands the case to the Superior Court of California, County of San Diego, Probate Division. It is ordered that the the Court concludes that it lacks subject-matter jurisdiction. Accordingly, the Court hereby remands this action to the Superior Court of California, County of San Diego, Probate Division. Signed by Judge Janis L. Sammartino on 6/20/2017. (All non-registered users served via U.S. Mail Service) (Certified Copy Mailed to State Court)(dxj) (sjt).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIANE MARIE BOSIO, et al., Case No.: 17-CV-610 JLS (AGS) Plaintiffs, 12 13 14 ORDER REMANDING CASE v. RICHARD LEMKE, (ECF Nos. 2, 3) Defendant. 15 16 17 Presently before the Court are Plaintiffs Elizabeth S. Del Pozo’s and Diane Marie 18 Bosio’s Motions to Remand. (ECF Nos. 2, 3, respectively.) Also before the Court are 19 Defendant Richard Lemke’s responses in opposition to, (ECF Nos. 4, 5), and Plaintiff 20 Bosio’s reply in support of, (ECF No. 9), the Motions to Remand. The Court vacated the 21 hearing on the motions and took them under submission without oral argument pursuant to 22 Civil Local Rule 7.1(d)(1). (ECF No. 8.) Plaintiffs seek to remand the case to California 23 Superior Court, County of San Diego on the grounds that the case was improperly removed 24 because it fails to state a federal question. (See generally ECF Nos. 2, 3.) For the following 25 reasons, the Court GRANTS Plaintiffs’ Motions and REMANDS the case to the Superior 26 Court of California, County of San Diego, Probate Division. 27 /// 28 /// 1 17-CV-610 JLS (AGS) 1 BACKGROUND 2 On March 12, 2004 Plaintiffs brought a probate action in the Superior Court of 3 California in the matter of The Moore Family Trust. (ECF No. 2-1, at 2.1) On January 4, 4 2017, Plaintiffs Bosio and Chas Moore Rundberg filed a complaint in the state court action 5 alleging that Lemke, then-trustee, was not qualified or capable of administering the Trust 6 and was unable to properly execute the duties of the office of trustee. (Id.; see also id. Ex. 7 1, ECF No. 2-3.) In fear the Trust would suffer irrevocable loss while Lemke acted as 8 trustee, on February 2, 2017 Bosio and Rundberg filed a subsequent petition to restrain 9 Lemke from acting as trustee, which was granted by the state court on February 7, 2017. 10 (Id.; see also id. Ex. 3, ECF No. 2-5.) On February 9, 2017, after discovering that Lemke 11 transferred title to real property to himself, Bosio and Rundberg filed another petition 12 requesting that the state court remove Lemke as trustee, appoint another in his place, and 13 reconvey the property to the Trust. (Id.; see also id. Ex. 4, ECF No. 2-6.) The state court 14 granted this, and other, relief on February 14, 2017. (Id.; see also id. Ex. 5, ECF No. 2-7.) 15 And, after some briefing between the parties, on March 10, 2017 Del Pozo was appointed 16 interim trustee. (Id.; see also id. Ex. 7, ECF No. 2-9.) 17 On March 27, 2017 Defendant Lemke filed his Notice of Removal in this Court. 18 (“Not. of Removal,” ECF No. 1.) Defendant’s Notice indicates that while this case was not 19 initially removable, “it became removable on March 22, 2017 because of an order” from 20 the state court which was “procured by fraud upon the court when the petitioners stated 21 they were beneficiaries of the Moore Family Trust, which is not true.” (Id. at 2.) Thus, 22 Defendant claims the Court has federal question jurisdiction under (1) Federal Rule of Civil 23 Procedure 60 (relief from judgment); (2) fraud upon the court; (3) tortious interference 24 and/or intentional interference with contractual relations; and (4) violations of his 25 /// 26 27 28 1 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each page. 2 17-CV-610 JLS (AGS) 1 constitutional rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. 2 (Id. at 4–5.) 3 LEGAL STANDARD 4 In cases “brought in a State court of which the district courts of the United States 5 have original jurisdiction,” defendants may remove the action to federal court. 28 U.S.C. 6 § 1441(a). Section 1441 provides two bases for removal: diversity jurisdiction and federal 7 question jurisdiction. Federal courts have diversity jurisdiction “where the amount in 8 controversy” exceeds $75,000, and the parties are of “diverse” state citizenship. 28 U.S.C. 9 § 1332. Federal courts have federal question jurisdiction over “all civil actions arising 10 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. 11 The party invoking the removal statute bears the burden of establishing that federal 12 subject-matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th 13 Cir. 1988). Moreover, courts “strictly construe the removal statute against removal 14 jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 15 863 F.2d 662, 663 (9th Cir. 1988)); Takeda v. Nw. Nat’l Life Ins. Co., 765 F.2d 815, 818 16 (9th Cir. 1985)). Therefore, “[f]ederal jurisdiction must be rejected if there is any doubt as 17 to the right of removal in the first instance.” Gaus, 980 F.2d at 566 (citing Libhart v. Santa 18 Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). 19 20 21 “[F]ederal courts are under an independent obligation to examine their own jurisdiction.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). ANALYSIS 22 Because the Court lacks subject-matter jurisdiction, removal was improper. 23 Defendant removes on the basis of a federal question, (see Not. of Removal 4–5), but the 24 Complaint does not present a federal question. 25 Federal question jurisdiction exists for “all civil actions arising under the 26 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Similarly, Article 27 III of the U.S. Constitution grants federal courts the power to hear “all cases, in law and 28 equity, arising under this Constitution, [and] the laws of the United States . . . .” Id. 3 17-CV-610 JLS (AGS) 1 Although the “arising under” language of § 1331 mirrors the language used in Article III, 2 courts have construed § 1331 more narrowly. See Louisville & Nashville R.R. Co. v. 3 Mottley, 211 U.S. 149, 152 (1908). 4 The Supreme Court has interpreted “arising under” in Article III to grant federal 5 courts jurisdiction when federal law “forms an ingredient of the original cause.” Osborn v. 6 Bank of the U.S., 22 U.S. 738, 822–25 (1824). For purposes of § 1331, however, federal 7 courts must apply the “well-pleaded complaint rule.” Vaden v. Discover Bank, 556 U.S. 8 49, 60 (2009). A cause of action arises under federal law for purposes of § 1331, and is 9 therefore a basis for removal, “only when the plaintiff’s statement of his own cause of 10 action shows that it is based upon [federal law].” Id. (quoting Mottley, 211 U.S. at 152). 11 There is no federal question presented in Plaintiffs’ underlying complaint. This is 12 solely a probate action governed by California law. (See, e.g., ECF No. 2-1, at 2–8 and 13 accompanying exhibits.) Defendant argues that federal question jurisdiction exists because 14 an order in state court was allegedly procured by fraud, but this claim does not appear on 15 the face of Plaintiffs’ complaint. Even if such claims appeared as federal defenses to the 16 enforcement of said order, “it is now settled law that a case may not be removed to federal 17 court on the basis of a federal defense . . . .” Caterpillar, Inc. v. Williams, 482 U.S. 386, 18 393 (1987) (emphasis in original). 19 Accordingly, the Court finds that Plaintiffs’ complaint does not state a federal 20 question. And when it appears that, prior to final judgment, this Court lacks subject-matter 21 jurisdiction, the proper remedy is to remand the case. See 28 U.S.C. §1447(c). 22 Plaintiffs also move for attorneys’ fees pursuant to § 1447(c), which provides that 23 “[a]n order remanding the case may require payment of just costs and any actual expenses, 24 including attorney fees, incurred as a result of the removal.” (See generally ECF Nos. 2, 25 3.) A decision to award attorneys’ fees is left to the court’s discretion, and “[a]bsent unusual 26 circumstances, courts may award attorney’s fees under § 1447(c) only where the removing 27 party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin 28 Capital Corp., 546 U.S. 132, 141 (2005). “But removal is not objectively unreasonable 4 17-CV-610 JLS (AGS) 1 solely because the removing party’s arguments lack merit, or else attorney’s fees would 2 always be awarded whenever remand is granted.” Lussier v. Dollar Tree Stores, Inc., 518 3 F.3d 1062, 1065 (9th Cir. 2008) 4 Additionally, “[w]hile pro se litigants ‘must follow the same rules of procedure that 5 govern other litigants,’ they are afforded some leeway regarding their compliance with 6 procedural rules and statutory schemes.” Esparza v. New Centry Mortg. Corp., No. 11-CV- 7 1622-IEG JMA, 2011 WL 4499117, at *2 (S.D. Cal. Sept. 26, 2011) (citations omitted). 8 Although the deficiencies of Defendant’s Notice of Removal would likely be readily 9 apparent to a practicing attorney, given Defendant’s pro se status, the Court exercises its 10 discretion and DENIES Plaintiffs’ request for attorneys’ fees under § 1447(c). See, e.g., 11 id. (finding same); see also Deutsche Bank Tr. Co. Ams. v. Bradford, No. C 12-01077 RS, 12 2012 WL 3069155, at *1 (N.D. Cal. July 26, 2012) (finding same and collecting cases). 13 CONCLUSION 14 In light of the foregoing, the Court concludes that it lacks subject-matter jurisdiction. 15 Accordingly, the Court hereby REMANDS this action to the Superior Court of California, 16 County of San Diego, Probate Division. 17 18 IT IS SO ORDERED. Dated: June 20, 2017 19 20 21 22 23 24 25 26 27 28 5 17-CV-610 JLS (AGS)

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