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

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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VICTOR SEMENYUK, et al.,

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Plaintiffs,
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CASE NO. C16-1897-JCC
ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

v.
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TATYANA ZAGREBELNY, et al.,
Defendants.

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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.”
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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.)
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Once removed, a case can be remanded to state court for either defects in the removal

ORDER GRANTING PLAINTIFF’S MOTION TO
REMAND
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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).
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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.
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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.
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For the foregoing reasons, Plaintiff’s motion to remand (Dkt. No. 5) is GRANTED.
ORDER GRANTING PLAINTIFF’S MOTION TO
REMAND
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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.
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DATED this 23rd day of January 2017.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER GRANTING PLAINTIFF’S MOTION TO
REMAND
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