Carrington Mortgage Services v. Gomez et al

Filing 9

MEMORANDUM DECISION and ORDER granting 3 Motion to Remand to State Court; granting 3 Motion for Attorney Fees. Case Closed. Signed by Judge Clark Waddoups on 5/12/2016. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CARRINGTON MORTGAGE SERVICES,
LLC,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:16-cv-276

DEBRA GOMEZ, et al.,

Judge Clark Waddoups

Defendants.

Before the court is Plaintiff Carrington Mortgage Services’ (Carrington’s) motion to
remand the case to state court. Carrington also asks for an award of the costs and attorney fees
incurred in pursuing remand. (Dkt. No. 3). For the following reasons, the court grants
Carrington’s motion.1
BACKGROUND
This case arises out of Carrington’s unlawful detainer action against Defendant Debra
Gomez and others. Carrington filed its complaint in Utah State Court on December 28, 2015.
Approximately three months later, Ms. Gomez, proceeding pro se,2 removed the case to the
United States District Court for the District of Utah. (Dkt. Nos. 1, 1-5). Ms. Gomez’s basis for
removal is that this action implicates a federal question because she filed for Chapter 13
bankruptcy prior to the eviction proceedings. (Dkt. No. 1, p. 5–6).

1

Ms. Gomez responded to Carrington’s motion, but did not do so within the time permitted. (See
Dkt. No. 7). Although it was not timely filed, the court considers Ms. Gomez’s response.
2

Because Ms. Gomez proceeds pro se, the court liberally construes her filings. But the court will not act as
her advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

In turn, Carrington filed a motion to remand, asserting that Ms. Gomez’s removal was
untimely. See 28 U.S.C. 1446(a) (requiring a defendant to file a notice of removal thirty-days
after receipt of the initial pleading). In the alternative, Carrington contends that even if the
removal were timely, federal subject matter jurisdiction is lacking. (Id.). Carrington also seeks
costs and attorney fees incurred in seeking remand. (Id.). The court begins by considering its
subject matter jurisdiction before turning to the attorney fees issue.
ANALYSIS
A. Ms. Gomez’s removal notice fails to establish federal jurisdiction.
Even if the court assumes that Ms. Gomez’s notice of removal is timely, Ms. Gomez has
failed to establish this court’s subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994) (recognizing that federal courts are courts of limited
jurisdiction and therefore “It is to be presumed that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the party asserting jurisdiction.”). Thus,
remand is required. See 28 U.S.C. § 1447 (“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.”).
“Federal courts are courts of limited jurisdiction, possessing only that power authorized
by Constitution and statute.” Gunn v. Minton, ___ U.S. ___, 133 S. Ct. 1059, 1064 (2013)
(internal quotation marks omitted). But Congress has authorized federal courts to resolve issues
arising under federal law, i.e. those implicating a federal question. See id. (quoting 28 U.S.C.
§ 1331) (“Congress has authorized the federal district courts to exercise original jurisdiction in
‘all civil actions arising under the Constitution, laws, or treaties of the United States.’”). When

2

seeking to remove a case to federal court on the basis of a federal question,3 “[t]he presence or
absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which
provides that federal jurisdiction exists only when a federal question is presented on the face of
the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (internal quotation marks omitted). In other words, the plaintiff is the “master of the
claim” and “he or she may avoid federal jurisdiction by exclusive reliance on state law.” Id. A
defendant cannot evade the plaintiff’s choice of forum by attempting to insert issues of federal
law into a claim that finds its origins in state statute alone. See id. (“[I]t is now settled law that a
case may not be removed to federal court on the basis of a federal defense.”); Merrell Dow
Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986) (recognizing that “the mere presence of a
federal issue in a state cause of action does not automatically confer federal-question
jurisdiction”). Accordingly, in assessing whether Ms. Gomez’s removal was proper, the court
must consider whether Carrington’s complaint presents a federal question. The court concludes it
does not.
A case can present a federal question, implicating this court’s subject matter jurisdiction,
in two ways. Id. First, and “[m]ost directly, a case arises under federal law when federal law
creates the cause of action asserted.” Gunn, 133 S. Ct. at 1064. Second, where a claim finds its
origins in state rather than federal law, the Supreme Court has identified a “special and small
category of cases in which arising under jurisdiction still lies.” Id. (internal quotation marks
omitted). To invoke this so-called “substantial question” branch of federal question jurisdiction,
3

Ms. Gomez does not assert diversity of citizenship as a basis for jurisdiction, and, in any event, has failed
to plead plausibly that the amount in controversy would be satisfied in this case. (See Dkt. No. 1); see also Dart
Cherokee Basin Operating Co., LLC v. Owens, ___ U.S. ___, 135 S. Ct. 547, 551 (2014) (holding that the requisite
amount in controversy must be plausibly alleged, either by the plaintiff or by a defendant seeking removal). The
court limits its inquiry to whether this case presents a federal question accordingly. See Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994).

3

the party seeking to establish jurisdiction must show that “a federal issue is: (1) necessarily
raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress.” Id. at 1065. Here, Carrington’s
complaint cannot be reasonably interpreted to invoke either basis for federal question
jurisdiction.
Indeed, Carrington seeks to evict Ms. Gomez from foreclosed property under Utah’s
unlawful detainer statute. (Dkt. No. 1-5, p. 17). Nothing in Carrington’s complaint implicates
federal law directly. Nor is there any indication that Carrington’s claims for eviction raise a
“substantial question” of federal law. The fact of Ms. Gomez’s bankruptcy proceeding or its
effect on the eviction proceedings, although perhaps relevant, are not essential to Carrington’s
claims. See Gilmore v. Weatherford, 694 F.3d 1160, 1173 (10th Cir. 2012) (“To determine
whether an issue is ‘necessarily’ raised, the Supreme Court has focused on whether the issue is
an essential element of a plaintiff’s claim”). To the contrary, Ms. Gomez appears to raise her
Chapter 13 bankruptcy filing in an attempt to defend against Carrington’s unlawful detainer
action. But it is well established that the court’s federal question jurisdiction is not implicated in
such a circumstance. See Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1247 (10th Cir. 2005)
(recognizing that “a case may not be removed to federal court solely because of a defense or
counterclaim arising under federal law”); see, e.g., Becker v. Ute Indian Tribe of the Uintah &
Ouray Reservation, 770 F.3d 944, 948 (10th Cir. 2014) (holding that the fact that the defendant
intended to raise sovereign immunity as a type of federal defense did “not convert a suit
otherwise arising under state law into one . . . aris[ing] under federal law”). For this reason, this
case does not arise under federal law and removal was improper. The court remands the matter to
state court accordingly.

4

B. Carrington is entitled to costs and attorney fees.
Section 1447(c) provides that “[a]n order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the removal.” The
Supreme Court has clarified that “[a]bsent unusual circumstances, courts may award attorney’s
fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for
seeking removal. Conversely, when an objectively reasonable basis exists, fees should be
denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Considering Ms. Gomez’s
notice of removal under these standards, the court finds that Carrington is entitled to costs and
attorney fees incurred in seeking remand.
As explained, Supreme Court and Tenth Circuit precedent clearly provide that the court’s
federal question jurisdiction is not implicated under these circumstances. Ms. Gomez’s
arguments supporting removal were therefore objectively unreasonable. Ms. Gomez’s status as a
pro se litigant does not excuse her from the requirement that she refrain from making arguments
that are plainly foreclosed by existing precedent, see Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (“Although a pro se litigant’s pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers, this court
has repeatedly insisted that pro se parties follow the same rules of procedure that govern other
litigants.” (internal quotation marks and brackets omitted)), nor does her pro se status prevent
the court from imposing costs and fees under § 1447(c), see Topeka Hous. Auth., 404 F.3d at
1248. Carrington is therefore entitled to its costs and fees incurred pursuing remand.

5

CONCLUSION
Carrington’s motion to remand and for attorney fees (Dkt. No. 3) is GRANTED. The
court remands this case to the state court and directs Carrington to submit briefing as to the
amount of costs and fees it incurred seeking remand.
SO ORDERED this 12th day of May, 2016.
BY THE COURT:

________________________________
Clark Waddoups
United States District Court 

6