Wells Fargo Bank,N.A. et al v. Lombera et al
Filing
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ORDER Referring Case to Judge Koh for a Related Case Determination; REPORT AND RECOMMENDATIONS re 1 , 2 , 3 and 5 . Objections due by 8/27/2012. Signed by Magistrate Judge Howard R. Lloyd on 8/7/2012. (hrllc2, COURT STAFF) (Filed on 8/7/2012)
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*E-FILED: August 7, 2012*
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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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For the Northern District of California
United States District Court
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No. C12-03496 HRL
WELLS FARGO BANK, N.A.,
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ORDER REFERRING CASE TO JUDGE
KOH FOR A RELATED CASE
DETERMINATION
Plaintiff,
v.
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CONSUELO LOMBERA, MARIA LOMBERA,
DOES 1-10, inclusive,
Defendants.
REPORT AND RECOMMENDATION RE
MOTION FOR REMAND AND FOR
SANCTIONS
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On July 5, 2012, Consuelo and Maria Lombera removed this unlawful detainer case
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from the Santa Clara County Superior Court, and they each filed an Application for Leave to
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Proceed In Forma Pauperis (IFP Application).
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This is the Lomberas’ third attempt to remove this same unlawful detainer action here.
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Maria Lombera previously filed a notice of removal, asserting federal question
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jurisdiction under 28 U.S.C. § 1331. See C11-06390LHK, Wells Fargo Bank, N.A. v. Lombera,
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Dkt. No. 1. The court remanded the matter to the state court, finding that the complaint
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disclosed no federal question. Id., Dkt. No. 13.
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Several weeks later, Maria Lombera removed the unlawful detainer action a second
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time, asserting diversity jurisdiction under 28 U.S.C. § 1332. The court once again remanded
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the matter to state court for lack of subject matter jurisdiction. See C12-01710LHK, Wells
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Fargo Bank, N.A. v. Lombera, Dkt. Nos. 7 and 8. Although plaintiff’s motion for attorney’s
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fees was denied, the court’s remand order stated, “Defendants are on notice that any future
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attempts to remove this unlawful detainer action again to federal court may result in sanctions.”
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Id., Dkt. No. 8 at 2.
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Once again—and, despite prior court orders finding that there is no basis whatsoever for
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federal subject matter jurisdiction—the Lomberas have removed this same unlawful detainer
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action here, this time asserting both federal question and diversity jurisdiction. Plaintiff Wells
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Fargo Bank moves to remand. It also requests an award of at least $7,500 in attorney’s fees and
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costs as a sanction. Plaintiffs have not filed any opposition, and the time for filing a response to
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the instant motion has passed. The matter is deemed suitable for determination without oral
argument. Civ. L.R. 7-1(b). Plaintiff’s motion for an order shortening time is denied, and the
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For the Northern District of California
United States District Court
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noticed August 21, 2012 hearing is vacated.
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The instant action is hereby referred to Judge Koh for a determination as to whether it is
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related to C11-06390LHK, Wells Fargo Bank, N.A. v. Lombera and C12-01710LHK Wells
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Fargo Bank, N.A. v. Lombera, within the meaning of Civil Local Rule 3-12. Additionally, for
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the reasons stated below, the undersigned recommends that defendants’ IFP Applications be
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denied, plaintiff’s motion for remand be granted, and that plaintiff’s motion for fees and costs
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be granted in part. In addition to, or in lieu of monetary sanctions, the undersigned suggests
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that the district court may wish to issue an order informing the Lomberas that if they ever
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attempt to remove this action again in the future, the court will entertain a motion by plaintiff,
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upon proper notice to defendants, for an order declaring them to be vexatious litigants.
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Removal to federal court is proper where the federal court would have original subject
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matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly
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construed against removal and place the burden on the defendant to demonstrate that removal
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was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009)
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(citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). A case must be remanded to the
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state court if it appears at any time before final judgment that the court lacks subject matter
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jurisdiction. 28 U.S.C. § 1447(c).1
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As the Lomberas have repeatedly been told:
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There is no federal question jurisdiction here because the complaint contains no claim
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arising under federal law. See Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009) (A
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claim “arises under” federal law if, based on the “well-pleaded complaint rule,” the plaintiff
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alleges a federal claim for relief). Allegations in a removal notice or in a response to the
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complaint cannot provide this court with federal question jurisdiction.
demanded does not exceed $10,000. And, as California residents, the Lomberas cannot remove
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For the Northern District of California
Nor does the court have diversity jurisdiction. The complaint indicates that the amount
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United States District Court
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the case on the basis of diversity in any event. See 28 U.S.C. § 1441(b)(2) (stating that an
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action may not be removed on the basis of diversity “if any of the parties in interest properly
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joined and served as defendants is a citizen of the State in which such action is brought.”); see
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also Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that the
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presence of a local defendant at the time removal is sought bars removal.”).
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“An order remanding the case may require payment of just costs and any actual
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expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c).
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“Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where
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the removing party lacked an objectively reasonable basis for seeking removal. Conversely,
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when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin Capital
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Corp., 546 U.S. 132, 141, 126 S. Ct. 704, 163 L.Ed.2d 547 (2005). “In applying this rule,
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district courts retain discretion to consider whether unusual circumstances warrant a departure
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from the rule in a given case.” Id. As explained by the Ninth Circuit, “removal is not
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objectively unreasonable solely because the removing party’s arguments lack merit, or else
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Additionally, the court is obliged to examine any application for leave to
proceed in forma pauperis and determine whether the action has merit. A court may dismiss
a case filed without the payment of the filing fee whenever it determines that the action “(i)
is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B)(i)-(iii).
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attorney’s fees would always be awarded whenever remand is granted.” Lussier v. Dollar Tree
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Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). Instead, the objective reasonableness of
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removal depends on the clarity of the applicable law and whether such law “clearly foreclosed”
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the arguments in support of removal. Id. at 1066-67.
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Here, it is plain that there is no basis for removal because this action involves only a
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state law claim for relief, and there is no basis for federal question or diversity jurisdiction. In
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view of defendants’ pro se status, the court previously exercised its discretion and declined to
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impose sanctions. See, e.g., Wells Fargo Bank, N.A. v. Hunt, No. C10-04965JCS, 2011 WL
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445801 at *5 (N.D. Cal., Feb. 3, 2011) (“In determining whether to award attorneys’ fees in
cases involving improper removal by a pro se defendant, courts accord significant weight to the
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For the Northern District of California
United States District Court
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defendant’s lack of representation.”) (citing cases).
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Nevertheless, defendants’ litigation history establishes a troubling record of repeated
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removals of the same unlawful detainer action, in apparent disregard of the court’s prior remand
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orders. The court is well within its discretion to award attorney’s fees as a sanction. See, e.g.,
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U.S. Bank Nat’l Ass’n v. Mikels, No. C12-00047, 2012 WL 506565 (N.D. Cal., Feb. 15, 2012)
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(Hamilton, J.) (awarding fees against a pro se defendant where the court had already remanded
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the case once, and then defendant removed the case a second time just before the state court was
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to hear summary judgment motions).
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Even so, plaintiff’s claim for over $7,500 in fees and costs is excessive. To begin, that
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sum apparently includes fees incurred for “well over 20 hours” (at $300 per hour) preparing all
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three remand motions. (Harris Decl. ¶¶ 12-13). But, as noted above, plaintiff’s prior request
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for fees was denied. Additionally, plaintiff’s counsel says that he spent “well over 5 hours”
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researching and drafting the instant motion to remand and supporting papers. (Id. ¶ 12). All
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three remand motions, however, are virtually identical; and, the instant motion appears to be a
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largely recycled version of the first two. (See Dkt. No. 6; C11-06390LHK, Dkt. No. 10; C12-
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01710LHK, Dkt. No. 4). Nor is it clear precisely what costs plaintiff seeks to recover. This
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court finds that any award of fees should total no more than $900.
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Defendants’ IFP applications, however, indicate that they are impecunious. (Dkt. Nos.
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2-3). If the district court determines that monetary sanctions therefore are inappropriate, the
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undersigned suggests that the court may wish to issue an order informing the Lomberas that if
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they ever attempt to remove this action again in the future, the court will entertain a motion by
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plaintiff, upon proper notice to defendants, for an order declaring them to be vexatious litigants.
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Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file
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objections to this Report and Recommendation within fourteen days after being served.
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SO ORDERED.
Dated: August 7, 2012
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For the Northern District of California
United States District Court
HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE
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5:12-cv-01710-HRL Notice has been electronically mailed to:
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Scott Michael Harris
scottharrislaw@sbcglobal.net
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5:12-cv-01710-HRL Notice sent by U.S. Mail to:
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Maria Lombera
5282 Pebbletree Way
San Jose, CA 95111
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Consuelo Lombera
5282 Pebbletree Way
San Jose, CA 95111
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For the Northern District of California
United States District Court
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