Nazemi et al v. Wrona et al
Filing
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FINDINGS AND RECOMMENDATION THAT PLAINTIFFS' MOTION TO REMAND BE GRANTED re 4 - Signed by Judge BARRY M. KURREN on 7/30/13. " Based on the foregoing, the Court FINDS and RECOMMENDS that Plaintiffs' motion to reman d be GRANTED, and that Plaintiffs be awarded $2738.69 in attorneys' fees." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Diane Mather served by first class mail at the address of record on July 30, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MINU NAZEMI, et al.
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Plaintiffs,
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vs.
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LESLIE M. WRONA, et al.
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Defendants.
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______________________________ )
Civ. No. 13-00239 SOM-BMK
FINDINGS AND
RECOMMENDATION THAT
PLAINTIFFS’ MOTION TO
REMAND BE GRANTED
FINDINGS AND RECOMMENDATION THAT PLAINTIFFS’ MOTION TO
REMAND BE GRANTED
Before the Court is Plaintiffs Minu Nazemi and Martha Nazemi’s
motion to remand this case to state court. (Doc. # 4.) After careful consideration
of the motion, the supporting and opposing memoranda, and the arguments of
counsel, the Court FINDS and RECOMMENDS that the motion be GRANTED.
Specifically, the Court: 1) finds that the removal is untimely; 2) finds that the
Court lacks subject matter jurisdiction; and 3) awards Plaintiffs $2738.69 in
attorneys’ fees.
Removal is improper because it is untimely. 28 U.S.C. § 1446(b)(1)
requires defendants to file a notice of removal within thirty days after receiving a
copy of the complaint. The Complaint in this case was served on February 22,
2013, making March 25, 2013 the deadline to remove the case. (Mem. in Supp. of
Mot. Ex B.) Defendants’ removal is untimely because it was not filed until May
15, 2013. See Beneficial Fin. I Inc. v. Grace, Civ. No. 11-00624 SOM-BMK, 2011
WL 6180132 at *1 (D. Haw. Dec. 13, 2011) (remanding case where removal was
untimely).
Moreover, this Court lacks subject matter jurisdiction over this case.
Plaintiffs’ complaint alleges claims for breach of contract, specific performance,
fraud/misrepresentation, civil conspiracy, unfair and deceptive acts or practices,
and negligence. (Mem. in Supp. of Mot. Ex. A.) None of these claims present
federal questions. See Pressman v. Meridian Mortgage Co., Inc., 334 F. Supp.2d
1236, 1240 (D. Haw. 2004) (federal jurisdiction exists only when a federal
question is presented on the face of plaintiffs’ properly pleaded complaint).
The Court also lacks diversity jurisdiction because Defendant Diane
Mather is a Hawaii citizen. See 28 U.S.C. § 1441(b)(2) (“A civil action otherwise
removable solely on the basis of the jurisdiction under section 1332(a) of this title
may not be removed if any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought.”); Mem. in
Supp. of Mot. Ex. A at 2, ¶ 5. Additionally, there is not complete diversity
between the parties because Plaintiffs and Defendants Leslie Wrona and Jeffrey
Mather are citizens of California. (Mem. in Supp. of Mot. Ex. A at 2 ¶¶ 1-4.); In re
Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008) (stating that
diversity jurisdiction “requires complete diversity between the parties -- each
defendant must be a citizen of a different state from each plaintiff .”). Therefore,
the Court remands the case because Defendants’ notice of removal is untimely and
the Court lacks subject matter jurisdiction.
Finally, the Court concludes that awarding attorneys’ fees to Plaintiffs
is appropriate, because Defendants’ removal was not objectively reasonable. See
28 U.S.C. § 1447(c) (“An order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the
removal.”); Patel v. Del Taco, Inc., 446 F.3d 996, 999-1000 (9th Cir. 2006)
(affirming award of fees when defendants had “no objectively reasonable basis for
removal”). Even though Defendant Diane Mather is proceeding pro se, the Court
finds that removal was not objectively reasonable because it was clearly untimely
and there were no federal questions raised in Plaintiffs’ complaint.
The Court has reviewed Plaintiff Counsel’s affidavit, and finds that
$2738.69 is a reasonable amount of attorneys’ fees for the remand proceedings.
The Court has reduced the hourly rate of Plaintiffs’ paralegal from $135 to $85 to
comport with the reasonable hourly rates in this jurisdiction. See Donkerbrook v.
Title Guar. Escrow Services, Inc., Civ. No. 10–00616 LEK–RLP, 2011 WL
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3649539, at *7 (D. Haw. Aug. 18, 2011).
CONCLUSION
Based on the foregoing, the Court FINDS and RECOMMENDS that
Plaintiffs’ motion to remand be GRANTED, and that Plaintiffs be awarded
$2738.69 in attorneys’ fees.
DATED: Honolulu, Hawaii, July 30, 2013.
IT IS SO FOUND AND RECOMMENDED.
/s/ Barry M. Kurren
United States Magistrate Judge
Nazemi v. Wrona, Civ. No. 13-00239 SOM-BMK, FINDINGS AND RECOMMENDATION
THAT PLAINTIFFS’ MOTION TO REMAND BE GRANTED
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