Kard v. GMAC Mortage, LLC et al

Filing 13

ORDER Granting 8 Motion to Reconsider, Vacating Remand Order, and Ordering Recall of Remand. Signed by Judge Thomas J. Whelan on 7/8/2024. (CC: SDSC)(All non-registered users served via U.S. Mail Service)(exs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NICHOLE KARD, Case No.: 3:23-cv-1780-W-DEB Plaintiff, 12 13 v. 14 16 GMAC MORTGAGE, LLC; REAL TIME RESOLUTIONS; RRA CP OPPORTUNITY TRUST 2; ZBS LAW LLP; DOES 1-100, 17 Defendants. 15 ORDER GRANTING MOTION TO RECONSIDER, VACATING REMAND ORDER, AND ORDERING RECALL OF REMAND [Doc. 8] 18 19 On March 4, 2024, the Court remanded this case after finding that the removing 20 parties’ allegation regarding the amount in controversy lacked plausibility in light of 21 counsel’s declaration that the full amount of the lien at issue had been received. On 22 April 1, Defendants Real Time Resolutions, Inc. (“Real Time”) and RRA CP Opportunity 23 Trust 2 (“RRA”) filed a motion to reconsider and supplemented the evidence regarding 24 the amount in controversy. (Motion [Doc. 8]; Stip. [Doc. 8-3]). Plaintiff opposed. Real 25 Time and RRA replied. The Court decides the matter on the papers submitted and 26 without oral argument pursuant to Civil Local Rule 7.1.(d.1). For the following reasons, 27 the Court GRANTS the motion to reconsider (Doc. 8), VACATES its March 4, 2024, 28 remand order (Doc. 7), and ORDERS the remand recalled. 1 23-cv-1780 1 The Court has jurisdiction to reconsider its remand order here because after the 2 notice of removal there was not an opportunity for the removing parties to supplement 3 evidence of the amount in controversy. Acad. of Country Music v. Cont’l Cas. Co., 991 4 F.3d 1059, 1070 (9th Cir. 2021) (citing Dart Cherokee Basin Operating Co., LLC v. 5 Owens, 574 U.S. 81 (2014); Arias v. Residence Inn by Marriott, 936 F.3d 920 (9th Cir. 6 2019)). A removing party’s “notice of removal need include only a plausible allegation 7 that the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee 8 Basin Operating Co., LLC, 574 U.S. at 89. However, if there is a question regarding the 9 plausibility of the amount in controversy, “a district court must not remand [] without 10 first giving the defendant an opportunity to show by a preponderance of the evidence that 11 the jurisdictional requirements are satisfied.” Arias, 936 F.3d at 924 (requiring vacatur of 12 remand). Remanding sua sponte without allowing the removing party to supplement its 13 notice of removal is not a colorable basis for remand. Acad. of Country Music, 991 F.3d 14 at 1070 (reading together 28 U.S.C. §§ 1447(c), 1447(d)). 15 Real Time and RRA move for reconsideration subject to Federal Rules of Civil 16 Procedure 59 and 60. In relevant part, Rule 60 permits relief from a final judgment, 17 order, or proceeding based on mistake or any other reason that justifies relief. Fed. R. 18 Civ. P. 60(b)(1), (6). Real Time and RRA have demonstrated that Acad. of Country 19 Music requires relief from the prior remand order because the Court, on its own, 20 questioned the amount in controversy based on counsel’s declaration but did not issue an 21 order to show cause or otherwise permit the removing parties to supplement evidence of 22 the controverted amount as required by Acad. of Country Music, 991 F.3d at 1069–70. 23 Accordingly, reconsideration is appropriate under Rule 60(b). 24 Having reconsidered its remand order, the notice of removal, the supplemental 25 evidence of the amount in controversy, and all of the record, the Court concludes that the 26 amount in controversy element is satisfied. First, Plaintiff’s Complaint pleads a cause of 27 action, under Cal. Bus. & Prof. Code § 17200, that plausibly places in dispute the 28 $275,822.11 amount owed on the loan, as well as any additional amount that allegedly 2 23-cv-1780 1 unjustly enriched defendants. (Complt. [Doc.1-4 at 12–15]). Second, during the 2 proceedings before the state court, the parties stipulated that the disputed loan’s payment 3 to the lender through escrow would allow the sale of the house but would not resolve the 4 dispute between the parties over the pay-off amount of $287,463.94. (Stip. at 3–4.) 1 5 Third, although not required to do so, Plaintiff’s opposition to reconsideration does not 6 argue that less than $75,000 remains in dispute but instead that the Court should not 7 reconsider its remand at all. (Oppo. at 2–4.) Plaintiff does not address the application of 8 Acad. of Country Music to this record. The Court concludes the amount in controversy 9 element of diversity jurisdiction is satisfied. 10 For these reasons, the Court must vacate its prior remand order in light of Academy 11 of Country Music. Having reconsidered the amount in controversy, the Court concludes 12 that the amount in controversy is satisfied. Accordingly, the Court GRANTS the motion 13 to reconsider, VACATES its prior remand order (Doc. 7), and ORDERS that the remand 14 be recalled. Further, the Court ORDERS the Clerk to notify the San Diego Superior 15 Court that this Court has resumed jurisdiction over the case as of the date of this Order’s 16 filing. To efficiently manage its docket, the Court reiterates that Plaintiff’s counsel has 17 not moved to withdraw as counsel before this Court. Unless and until such a request is 18 filed and granted, the duties of Plaintiff’s counsel to his client and the Court continue. 19 Dated: July 8, 2024 20 21 22 23 24 25 26 27 28 1 Although this evidence and information was available at the time of removal but omitted from the notice of removal, the Court agrees with the removing parties that the stipulation may be considered now as evidence of the amount in controversy under the principles of supplemental evidence explained in Acad. of Country Music, 991 F.3d at 1069–70, and Arias, 936 F.3d at 924. 3 23-cv-1780

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