US Bank National Association v. Cominsky et al

Filing 10

ORDER GRANTING PLAINTIFFS MOTION TO REMAND TO SUPERIOR COURT. Plaintiffs Motion to Remand to Superior Court ECF No. 6 is DENIED as moot. Plaintiffs Motion to Remand to Superior Court ECF No. 8 is GRANTED. Defendants in forma pauperis status is REVOKED. Case remanded to Yakima County Superior Court. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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US BANK NATIONAL
ASSOCIATION AS LEGAL TITLE
TRUSTEE FOR TRUMAN 2013 SC3
TITLE TRUST

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Plaintiff,

NO: 1:17-CV-3098-TOR
ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND TO
SUPERIOR COURT

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v.
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JULIE COMINSKY, PAUL
COMINSKY, AND ALL
OCCUPANTS OF THE PREMISES
LOCATED AT 807 HENNESSY RD.,
YAKIMA, WA 98908,

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Defendants.
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BEFORE THE COURT are Plaintiff’s Motions to Remand to Superior Court

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(ECF Nos. 6 and 8). These matter were submitted for consideration without oral

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argument. The Court has reviewed the briefing, and the record and files herein,

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and is fully informed.

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//

ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR
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BACKGROUND

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In March 2017, Plaintiff US Bank National Association as Legal Title

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Trustee for Truman 2013 SC3 Title Trust (“US Bank”) served its Complaint for

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Forcible or Unlawful Detainer in Yakima County Superior Court on and against

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Defendants Paul and Monica Cominsky (“Defendants”), seeking an order issuing a

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writ of restitution. ECF No. 5 at 9-11. Specifically, US Bank acquired title to real

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property located at 807 Hennessy Road, Yakima, WA 98908, on December 30,

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2016, through a non-judicial foreclosure sale. ECF Nos. 6 at 1; 8 at 1. On June 2,

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2017, US Bank scheduled a show cause hearing before the Yakima County

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Superior Court. ECF Nos. 6 at 2; 8 at 2. However, shortly thereafter, Defendants

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Julie and Paul Cominsky (“Defendants”) filed a Notice of Removal of Case to

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Federal Court Pursuant to 28 U.S.C. § 1331 and § 1446, which vacated the show

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cause hearing See ECF No. 5.

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In their notice of removal, Defendants asserted removal jurisdiction on the

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basis of a federal question pursuant to 28 U.S.C. § 1441 because US Bank

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allegedly failed to provide notice under the Tenants at Foreclosure Act, 12 U.S.C.

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§ 5220, and supplemental jurisdiction with respect to any remaining claims,

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pursuant 28 U.S.C. § 1367. Id.

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//

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//
ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR
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In the instant motions, US Bank moves to remand this case back to the

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Yakima County Superior Court. 1 ECF Nos. 6; 8. Plaintiff filed its second motion

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because it did not serve the first motion at Defendants’ correct address. Compare

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ECF Nos. 7 at 3 (incorrectly addressed to 804 Hennessy Road), with 9 at 3

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(correctly addressed to 807 Hennessey Road).

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Because Plaintiff’s claim is strictly based upon state law, US Bank asserts

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that removal based on federal question jurisdiction is improper. ECF Nos. 6 at 3; 8

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at 3. Defendants were required to file a responsive memorandum to Plaintiff’s

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second motion (ECF No. 8) by August 8, 2017. See LR 7.1(b)(2)(A) (21 days after

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the mailing of the nondispositive motion). However, Defendants have failed to

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respond. 2

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//

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//

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US Bank’s motions refer to Snohomish County Superior Court. ECF Nos. 6

at 1; 8 at 1. The Court recognizes these are inadvertent errors because US Bank’s
Complaint was initially filed in and removed from the Yakima County Superior
Court. See ECF No. 5.
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The failure to timely respond may be considered by the Court as “consent to

the entry of an Order adverse to the [defaulting] party[.]” LR 7.1(d).

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ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR
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DISCUSSION

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Title 28 United States Code Section 1441 governs removal of cases from

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state court to federal court. Generally, a defendant may remove a case to federal

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court if the federal court would have subject-matter jurisdiction over one or more

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of the plaintiff’s claims pursuant to 28 U.S.C. §§ 1331 (federal question) or 1332

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(diversity of citizenship).3 See 28 U.S.C. § 1441(a), (b). “The defendant bears the

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burden of establishing that removal is proper.” Provincial Gov’t of Marinduque v.

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Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009).

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Under federal question jurisdiction, federal district courts have original

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jurisdiction over all claims “arising under the Constitution, laws, or treaties of the

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United States.” 28 U.S.C. § 1331. Because a defendant may remove a case only if

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the claim could have been brought in federal court, 28 U.S.C. § 1441(b), whether a

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suit arises under federal law is determined by the well-pleaded complaint rule,

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which provides that federal jurisdiction exists “only when a federal question is

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presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar

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Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, when federal law creates the

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cause of action asserted, the case arises under federal law and will allow for

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for in 28 U.S.C. § 1447(c).

US Bank timely moved to remand pursuant to the 30-day period provided

ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR
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removal under Section 1331. Gunn v. Minton, 568 U.S. 251, 133 S.Ct. 1059, 1064

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(2013). It is well established, however, that “[a] defense that raises a federal

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question is inadequate to confer federal jurisdiction.” Merrell Dow Pharm., Inc. v.

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Thompson, 478 U.S. 804, 808 (1986) (emphasis added).

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Examination of US Bank’s Complaint under the well-pleaded complaint

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rule, Caterpillar Inc. v. Williams, 482 U.S. at 392, reveals no federal causes of

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action. Rather, US Bank’s Complaint is solely grounded on Washington state law,

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to wit: RCW 59.12 and RCW 61.24.060. See ECF No. 5 at 9-11. The

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supplemental jurisdiction statute, 28 U.S.C. § 1367(a), does not save this action

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without a viable federal law claim. Moreover, any defense raised by Defendants

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cannot confer federal jurisdiction. See Merrell Dow 478 U.S. at 808. Therefore,

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Defendants’ removal is improper and remand is appropriate.

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Further, pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken

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in forma pauperis if the trial court certifies in writing that it is not taken in good

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faith.” The good faith standard is an objective one, and good faith is demonstrated

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when an individual “seeks appellate review of any issue not frivolous.” See

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Coppedge v. United States, 369 U.S. 438, 445 (1962). For purposes of 28 U.S.C. §

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1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v.

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Williams, 490 U.S. 319, 325 (1989).

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ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR
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The Court finds that any appeal of this Order would not be taken in good

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faith and would lack any arguable basis in law or fact. Accordingly, the Court also

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hereby revokes Defendants’ in forma pauperis status.

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ACCORDINGLY, IT IS HEREBY ORDERED:

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1.

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Plaintiff’s Motion to Remand to Superior Court (ECF No. 6) is
DENIED as moot.

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Plaintiff’s Motion to Remand to Superior Court (ECF No. 8) is
GRANTED.

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2.

Defendants’ in forma pauperis status is REVOKED.

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3.

This matter is REMANDED to the Yakima County Superior Court,

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State of Washington, for all remaining proceedings.
The District Court Executive is directed to enter this Order, provide copies

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to counsel, mail a certified copy of this Order to the Clerk of the Yakima County

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Superior Court, and CLOSE the file.

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DATED August 25, 2017.

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THOMAS O. RICE
Chief United States District Judge

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ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR
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