Semenyuk et al v. Zagrebelny et al

Filing 11

ORDER by U.S. District Judge John C Coughenour granting Plaintiff Victor Semenyuk's 5 motion to remand. Plaintiff is awarded costs and expenses, to be determined after further documentation. Plaintiff is ordered to provide the relevant documentation within 14 days of this Order. Defendant's motion to dismiss 9 is denied as moot due to lack of subject matter jurisdiction. (PM) cc: defendants via the USPS

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 VICTOR SEMENYUK, et al., 10 Plaintiffs, 11 CASE NO. C16-1897-JCC ORDER GRANTING PLAINTIFF’S MOTION TO REMAND v. 12 13 TATYANA ZAGREBELNY, et al., Defendants. 14 15 This matter comes before the Court on Plaintiff Victor Semenyuk’s motion to remand 16 and for sanctions (Dkt. No. 5). Defendants have not responded. Therefore, pursuant to Local 17 Civil Rule 7(b)(2), “such failure may be considered by the Court as an admission that the motion 18 has merit.” 19 On October 14, 2016, Plaintiff filed this unlawful detainer action against Defendant 20 Tatyana Zagrebelny in King County Superior Court. (Dkt. No. 1-1.) Defendant was personally 21 served on October 19, 2016. (Dkt. No. 6-8.) On December 12, 2016, Defendant removed the 22 action to federal court, asserting Fourth and Fourteenth Amendment defenses. (Dkt. No. 1.) 23 Plaintiff now asks the Court to remand the case because the removal was untimely and the Court 24 lacks subject matter jurisdiction. (Dkt. No. 5 at 2.) Plaintiff also requests costs and fees incurred 25 by bringing this motion. (Id. at 2, 13.) 26 Once removed, a case can be remanded to state court for either defects in the removal ORDER GRANTING PLAINTIFF’S MOTION TO REMAND PAGE - 1 1 procedure or lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). Pursuant to 28 U.S.C. 2 § 1446(b)(1), a removal is timely if it is filed within 30 days after Defendant receives the 3 complaint. The Court has subject matter jurisdiction where the matter (1) arises under the 4 Constitution, laws, or treaties of the United States, 28 U.S.C. § 1331, or (2) has an amount in 5 controversy exceeding $75,000 and there is complete diversity, 28 U.S.C. § 1332. Subject matter 6 jurisdiction arises from a plaintiff’s complaint and the Court does not have federal question 7 jurisdiction where the only federal issues are federal defenses raised by a defendant. Provincial 8 Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1086 (9th Cir. 2009). 9 The Court concludes that the removal was untimely and it lacks subject matter 10 jurisdiction over this matter. First, Plaintiff removed the case more than 30 days after being 11 served on October 19, 2016. Second, the complaint’s claim arises solely under Washington state 12 law and Defendant’s Fourth and Fourteenth Amendment defenses do not confer federal question 13 jurisdiction. Third, Plaintiff Victor Semenyuk and Defendant Tatyana Zagrebelny both live in 14 Washington and therefore the parties are not completely diverse. As such, the Court GRANTS 15 the motion to remand. 16 As for the request for costs and fees, attorney fees and costs are recoverable pursuant to 17 28 U.S.C. § 1447(c) where the removing party “lacked an objectively reasonable basis for 18 seeking removal.” Martin v. Franklin Capitol Corp., 546 U.S. 132, 141 (2005). Here, removal 19 was clearly improper as it was untimely and the Court lacks subject matter jurisdiction on the 20 face of the complaint. Therefore, the Court GRANTS Plaintiff’s request for fees and costs. 21 Plaintiff has presented evidence on the attorney fees incurred in both the state action and to bring 22 this motion to remand. (Dkt. No. 6 at ¶ 3.) However, the Court concludes that only the fees for 23 bringing the motion to remand are appropriate in this case. The Court ORDERS Plaintiff to 24 submit a more detailed documentation that outlines the costs incurred to bring this motion to 25 remand. 26 For the foregoing reasons, Plaintiff’s motion to remand (Dkt. No. 5) is GRANTED. ORDER GRANTING PLAINTIFF’S MOTION TO REMAND PAGE - 2 1 Additionally, Plaintiff is AWARDED costs and expenses, to be determined after further 2 documentation. Plaintiff is ORDERED to provide the relevant documentation within 14 days of 3 this Order. Further, Defendant’s motion to dismiss (Dkt. No. 9) is DENIED as moot because the 4 Court lacks subject matter jurisdiction. The Court DIRECTS the Clerk to send a copy of this 5 order to the Defendants. 6 DATED this 23rd day of January 2017. 7 8 9 A 10 11 12 John C. Coughenour UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND PAGE - 3

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