U.S. Bank, NA v. McCarty et al

Filing 6

ORDER finding as moot 2 Motion for Writ; granting 4 Motion to Remand, and awarding plaintiff's attorney fees in the amount of $100, signed by Judge Ronald B. Leighton.(DN) Modified on 3/15/2012 (DN). (Copy mailed to plaintiffs.)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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U.S. BANK, N.A., as trustee for Chevy Chase
Funding LLC Mortgage-Backed Certificates
Series 2006-2,
No. 12-CV-5150 RBL
Plaintiff,

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ORDER GRANTING MOTION FOR
REMAND

v.
JERRY R. McCARTY, SHERYL L.
McCARTY, and ALL OCCUPANTS of the
premises located at 16923 Brasher Lane,
Southeast, Rainier, Washington 98576,

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Defendants.

[Dkts. #2, 4]

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Defendants have removed an unlawful detainer action from state court, asserting both
federal-question and diversity jurisdiction. Under federal-question jurisdiction, a defendant may
remove “any civil action of which the district courts have original jurisdiction founded on a
claim or right arising under the Constitution, treaties or laws of the United States . . . .” 28
U.S.C. § 1441(b). Under diversity jurisdiction, a defendant may remove where the matter in
controversy exceeds $75,000 and the parties are citizens of different states. 28 U.S.C. § 1441(b);
see also id. § 1332. However, the forum-defendant rule prevents a party from removing in his
own state based on diversity jurisdiction: outside of federal-question jurisdiction, “action[s] shall
be removable only if none of the parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b). Lastly, a defendant
must remove within 30 days after receipt by the defendant of a copy of the complaint. See 28
U.S.C. § 1446(b).
Order - 1

The Court cannot identify a federal question; indeed, the only claim presented appears to

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be for unlawful detainer—a claim based in state law. And, because Defendants do not contest

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that they are citizens of Washington, diversity jurisdiction does not apply. Moreover,

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Defendants’ removal is untimely. (Defendants were served on January 11, 2012, and removed

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on February 23, 2012.)
Further, Plaintiff requests attorney’s fees incurred on this motion for remand, pursuant to

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28 U.S.C. § 1447(c). While the Court grants ample leeway to pro se parties, this removal quite

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clearly appears to be in bad faith on Defendants’ part. Not only is there absolutely no basis for

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removal, but Defendants do not contest that they removed the case precisely one-day before the

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state court’s hearing to resolve the unlawful detainer question. In response to the motion for

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remand, Defendants fail to explain their conduct in any way (rather, they demand sanctions

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against opposing counsel for “testifying” in his brief on remand1). In short, Defendants abused

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the removal process.

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The Court therefore GRANTS the motion to remand and AWARDS $100.00 in

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attorney’s fees to Plaintiffs. [Dkt. #4]. In light of the remand, Plaintiff’s pending motion for a

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writ of restitution is MOOT. [Dkt. #2].

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Dated this 14th day of March 2012.

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A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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For Defendants’ edification, and because this litigation threatens to continue, the Court notes that an attorney’s
declaration (presumably the item to which Defendants object) does not make the attorney a testifying fact-witness
on behalf of their client. Mr. Knox’s declaration authenticates the exhibits to Plaintiff’s brief.
Order - 2