Guild Mortgage Company v. Buccat et al
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND ACTION REMOVED FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I re: 5 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/16/2013. (afc)CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were ser ved by first class mail on the date of this docket entry DOCKET TEXT modified on 10/17/2013: Order furthermore denies defendant Margarita Aquino Buccat's "Motion to File Leave to Amend Notice of Removal," docket entry no. 14 , and GRANTS plaintiff Guild Mortgage Company's Request for Removal Expenses ["Supplement"], reference: docket entry no. 17 . NEF regenerated. (afc).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GUILD MORTGAGE COMPANY,
MARGARITA AQUINO BUCCAT;
BENEFICIAL FINANCIAL I INC;
JOHN DOES 1-10; JANE DOES 1- )
10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE
ENTITIES 1-10 AND DOE
GOVERNMENTAL UNITES 1-10,
CIVIL 13-00398 LEK-BMK
ORDER GRANTING PLAINTIFF’S MOTION TO REMAND ACTION REMOVED
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI`I
Before the Court is Plaintiff Guild Mortgage Company’s
(“Guild Mortgage”) Motion to Remand Action Removed from the
Circuit Court of the First Circuit, State of Hawai`i (“Motion”),
filed on August 26, 2013.1
[Dkt. no. 5.]
Aquino Buccat (“Buccat”) did not file a response to the Motion.
On October 4, 2013, Guild Mortgage filed a reply, noting Buccat’s
failure to respond.
[Dkt. no. 19.]
The Court finds this matter
suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
Guild Mortgage also filed a supplement to the Motion
(“Supplement”) on September 24, 2013. [Dkt. no. 17.]
After careful consideration of the Motion and the relevant legal
authority, Guild Mortgage’s Motion is HEREBY GRANTED for the
reasons set forth below.
On August 13, 2013, Buccat, who was proceeding pro se
at the time,2 filed a document titled “Notice of Removal and
Consolidation of Civil Action to United States District Court
Under 28 USC §1332, 1441, and 1446 (Diversity) Civil RICO and
Other Federal Issues Including Violation of Constitutional Rights
Under 14th Amendment” (“Notice of Removal”).
[Dkt. no. 1.]
action Buccat attempts to remove is a foreclosure proceeding.
[Transmittal of Documents from the Circuit Court of the First
Circuit, State of Hawai`i (“State Court Transmittal”), filed
9/27/13 (dkt. no. 18-6), First Amended Complaint filed 5/31/12.]
The Notice of Removal alleges that there is diversity
jurisdiction and that the removal was timely because Buccat “has
not been properly served and jurisdiction has being [sic]
[Notice of Removal at ¶¶ 2-3.]
that the amount in controversy exceeds $75,000, excluding
interest and costs, and there is diversity of citizenship because
Guild Mortgage is not a Hawai`i citizen and she is a Hawai`i
[Id. at ¶¶ 4-7.]
Buccat also asserts that there is
Roger Dewa, Esq., now represents Buccat.
Counsel, filed 9/3/13 (dkt. no. 9).]
federal question jurisdiction because the is a federal question
as to whether Guild Mortgage has standing to foreclose on
Buccat’s loan and because Guild Mortgage’s attempt to foreclose
without standing violates her due process rights under the
[Id. at ¶¶ 12, 14.]
Buccat alleges that
the federal question is based upon issues “surrounding the
construction of the Pooling and Service Agreement [(“PSA”)] of
GUILD MORTGAGE COMPANY, which has not been construed by any court
of law, state or federal.”
[Id. at ¶ 11 (emphasis in original).]
The documents that Buccat asserts gave rise to removal
jurisdiction are: Guild Mortgage’s Motion for Confirmation of
Sale by Commissioner, filed in the state court on July 15, 2013
(“Confirmation Motion”); and the First Amended Notice of Hearing
for the Confirmation Motion, filed in the state court on July 29,
[Notice of Removal, Exhibits.3]
The hearing on the
Confirmation Motion was scheduled for August 15, 2013.
to Guild Mortgage, after Buccat filed her Notice of Removal, the
state court continued the hearing on the Confirmation Motion
until moved upon.
[Mem. in Supp. of Motion at 2.]
A plaintiff may file a motion for remand to challenge
the removal of an action from state court to federal court.
Buccat did not number or otherwise identify the exhibits
attached to the Notice of Removal.
removal is proper under 28 U.S.C. § 1441(a) as long as the
plaintiff could have brought the action in federal court.
Courts, however, strictly construe § 1441 against removal, and
they resolve any doubts about the propriety of removal in favor
of remanding the case to state court.
Durham v. Lockheed Martin
Corp., 445 F.3d 1247, 1252 (9th Cir. 2006).
The party seeking to
remove the case bears the burden of establishing the existence of
Cal. ex rel. Lockyer v. Dynegy, Inc., 375
F.3d 831, 838 (9th Cir. 2004).
In the instant Motion, Guild Mortgage asserts two
grounds for remand: the removal is untimely; and the removal is
improper in light of the “forum defendant rule.”
agrees with both arguments.
Timeliness of Removal
28 U.S.C. § 1446(b) states, in pertinent part: “The
notice of removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or proceeding
Guild Mortgage filed this action on May 11, 2012.
[State Court Transmittal, (dkt. no. 18-6), Complaint.]
Mortgage filed a Return and Acknowledgment of Service in the
state court on June 12, 2012, indicating that Buccat was served
with the First Amended Complaint on June 6, 2012.
Buccat signed the Acknowledgment of Service as
“Margarita Culbengan,” noting that was her new last name.4
Insofar as Buccat failed to remove the action within
thirty days after service of the First Amended Complaint, the
removal is untimely.
Although Buccat contends that she was not
properly served, [Notice of Removal at ¶ 2,] she has not
identified any evidence that would rebut the Return and
Acknowledgment of Service, which establishes proper service on
Buccat on June 6, 2012.
In fact, Buccat failed to oppose the
instant Motion, and thus has not identified any arguments in
defense of her removal of this action.
This Court therefore
concludes that Buccat failed to carry her burden of proving
See Lockyer, 375 F.3d at 838.
Buccat and Defendant Beneficial Financial Inc. failed to
answer the First Amended Complaint, and the state court entered
default against them on September 24, 2012. [State Court
Transmittal, (dkt. no. 18-9).] On December 10, 2012, the state
court granted Guild Mortgage’s motion for default judgment,
summary judgment, and decree of foreclosure, and entered
judgment. [Id., (dkt. nos. 18-12), motion; id., (dkt. no. 1813), order granting motion.] On May 28, 2013, the state court
granted the foreclosure commissioner’s Motion for Leave to Sell
Property Without Holding Open Houses on the ground that
commissioner had been denied access to the property. [Id., (dkt.
no. 18-14), motion; id., (dkt. no. 18-16), order granting
motion.] The commissioner held a public auction on June 25,
2013. A representative of Guild Mortgage placed the only bid on
the property. [Id., (dkt. no. 18-17), Commissioner’s Report.]
The Confirmation Motion seeks confirmation of the sale of the
property to Guild Mortgage. [Id., (dkt. no. 18-18).]
Although this alone is a sufficient basis to grant the
instant Motion, for the sake of completeness and because it is
relevant to Guild Mortgage’s request for removal-related
expenses, this Court will also address Guild Mortgage’s argument
based on the “forum defendant rule.”
Forum Defendant Rule
To the extent that Buccat relied on diversity
jurisdiction as the basis for removal, Guild Mortgage contends
that the “forum defendant rule” precludes removal.
§ 1441(b)(2) states that an action which is removable solely on
the basis of diversity jurisdiction “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.”
“forum defendant rule” therefore “confines removal on the basis
of diversity jurisdiction to instances where no defendant is a
citizen of the forum state.”
Lively v. Wild Oats Mkts., Inc.,
456 F.3d 933, 939 (9th Cir. 2006) (citing 28 U.S.C. § 1332; 28
U.S.C. § 1441(b)).
Insofar as Buccat admits that she is a citizen of
Hawai`i, [Notice of Removal at ¶ 5,] removal based on diversity
jurisdiction is improper pursuant to the “forum defendant rule.”
III. Buccat’s Other Arguments
The Notice of Removal also appears to allege that there
is federal question jurisdiction, unrelated to Buccat’s defense.
Buccat apparently asserts that she has federal law counterclaims
against Guild Mortgage based on the construction of the PSA and
based upon the alleged violation of her due process rights.
at ¶¶ 11-12.]
The Ninth Circuit, however, has clearly held that
“[r]emovability cannot be created by defendant pleading a
counter-claim presenting a federal question . . . .”
Nw. Nat’l Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985)
(citations and quotation marks omitted).
“A case ‘arises under’
federal law only if the federal question appears on the face of
the plaintiff’s well-pleaded complaint.”
Id. at 821 (some
citations omitted) (citing Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1, 9-12, 103 S. Ct. 2841,
2846-2848, 77 L. Ed. 2d 420 (1983)).
Guild Mortgage’s First
Amended Complaint does not allege a federal question.
therefore concludes that removal on the basis of federal question
jurisdiction was improper.
Although Buccat did not respond to the Motion, on
September 16, 2013, she filed a motion titled “Motion to File
Leave to Amend Notice of Removal” (“Motion to Amend”).
It states, “[p]ursuant to Rule 15 of the Federal Rules of
Civil Procedure, Defendant Margarita Buccat-Culbengan hereby
respectfully moves the Court for leave to file an AMENDED
[Id. at 2 (emphasis in original).]
does not provide any basis for the proposed amendment, nor did
she submit the proposed amended document.
Cf. Local Rule LR10.3
(“Any party . . . moving to file an amended complaint,
counterclaim, third-party complaint, or answer or reply thereto
shall reproduce the entire pleading as amended and may not
incorporate any part of a prior pleading by reference, except
with leave of court.”).
Insofar as the Motion to Amend refers to
an amended complaint, Buccat does not have a complaint or
counterclaim to amend.
Insofar as Buccat seeks leave to amend
her Notice of Removal, for the reasons stated above, no amendment
to the Notice of Removal would cure the defects identified in
Buccat’s Motion to Amend is therefore DENIED.
Request for Removal Expenses
In the Supplement, Guild Mortgage requests an award of
removal-related expenses, including attorneys’ fees, pursuant to
28 U.S.C. § 1447(c), which states, in pertinent part: “An order
remanding the case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of
A district court “should award attorney’s fees and
costs under § 1447(c) ‘only where the removing party lacked an
objectively reasonable basis for seeking removal.’”
Co. v. United Enters. Ltd., 672 F.3d 1152, 1157 (9th Cir. 2012)
(quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126
S. Ct. 704, 163 L. Ed. 2d 547 (2005)).
This Court finds that Buccat lacked an objectively
reasonable basis for removal because: Buccat filed the Notice of
Removal well beyond the thirty-day filing period after service of
the First Amended Complaint; the removal violated the wellestablished “forum defendant rule”; and, after Guild Mortgage
filed the instant Motion, Buccat failed to raise any reasonable
argument in defense of the removal.
Rather, it appears that
Buccat’s removal served only to delay the resolution of this case
in the state court.5
See Martin, 546 U.S. at 140 (“The process
of removing a case to federal court and then having it remanded
back to state court delays resolution of the case, imposes
additional costs on both parties, and wastes judicial
This Court therefore GRANTS Guild Mortgage’s
request for removal-related expenses.
Guild Mortgage’s Supplement includes a Declaration of
Counsel, with exhibits, describing the expenses which Guild
Mortgage argues it reasonably incurred in connection with the
If Buccat disputes the reasonableness of the requested
award, she may file an opposition to the amount of the award
Buccat must file her opposition by no later than
October 31, 2013.
This Court will thereafter issue an order
This Court also notes that, at the Rule 16 Scheduling
Conference, the magistrate judge gave counsel one week to
stipulate to remand the case. [Minutes, filed 9/16/13 (dkt. no.
13).] Guild Mortgage, however, states that Buccat refused to
stipulate to a remand. [Supplement, Decl. of Counsel at ¶ 8.]
addressing the amount of the award.
On the basis of the foregoing, Guild Mortgage’s Motion
to Remand Action Removed from the Circuit Court of the First
Circuit, State of Hawai`i, filed August 26, 2013, is HEREBY
Buccat’s Motion to File Leave to Amend Notice of
Removal, filed September 16, 2013, is HEREBY DENIED.
Guild Mortgage’s request for removal-related expenses
is HEREBY GRANTED.
Buccat shall file any opposition to the
amount of the requested award by no later than October 31, 2013.
This Court will thereafter issue an order addressing the amount
of the award.
This Court HEREBY REMANDS this action to the First
This Court DIRECTS the Clerk’s Office to transmit
a certified copy of this order to clerk of the First Circuit
This Court retains jurisdiction solely for the purposes
of determining the amount of the award of removal-related
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 16, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
GUILD MORTGAGE COMPANY VS. MARGARITA AQUINO BUCCAT, ET AL; CIVIL
NO. 13-00398 LEK-BMK; ORDER GRANTING PLAINTIFF’S MOTION TO REMAND
ACTION REMOVED FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE
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