Mark Smith et al v. Sergei Daniel Vinkov et al, No. 5:2020cv01070 - Document 24 (C.D. Cal. 2020)
Court Description: ORDER GRANTING PLAINTIFFS' MOTION TO REMAND 16 by Judge Cormac J. Carney. Plaintiffs' motion to remand is GRANTED. This action is hereby remanded to Riverside County Superior Court. MD JS-6. Case Terminated. (iv)
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Mark Smith et al v. Sergei Daniel Vinkov et al Doc. 24 JS-6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 MARK SMITH, et al., 14 Plaintiffs, 15 16 17 v. SERGEI VINKOV, 18 19 Defendant. 20 ) ) Case No.: EDCV 20-01070-CJC(SPx) ) ) ) ) ) ) ORDER GRANTING PLAINTIFFS’ ) MOTION TO REMAND [Dkt. 16] ) ) ) ) ) ) ) ) 21 22 I. INTRODUCTION 23 24 Plaintiffs Mark Smith and Solar Forward Electric, Inc. (“Solar Forward”) brought 25 this action against pro se Defendant Sergei Vinkov in Riverside County Superior Court 26 on February 20, 2019. (Dkt. 16-3 [Declaration of Paul Levine, hereinafter “Levine 27 Decl.”] at Ex. B [Complaint, hereinafter “Compl.”].) Plaintiffs assert three state law 28 claims for slander, libel, and trade libel against Vinkov. (Id.) On June 1, 2020, Vinkov -1Dockets.Justia.com 1 removed the action to this Court. (Dkt. 3 [Notice of Removal, hereinafter “NOR”].) 2 Now before the Court is Plaintiffs’ motion to remand. (Dkt. 16 [hereinafter “Mot.”].) 3 For the following reasons, that motion is GRANTED.1 4 5 II. BACKGROUND 6 7 The facts leading to the instant dispute between Plaintiffs and Defendant are 8 straightforward. Plaintiff Mark Smith owns Solar Forward, a company that installs solar 9 panels at businesses and residences. (Compl. ¶ 1.) At some point in late 2018, Vinkov 10 posted a series of negative comments about Solar Forward on Facebook, Google, and 11 Yelp. (Id. ¶ 6.) Specifically, Vinkov warned future Solar Forward consumers to “be 12 careful with this company,” asserted that Solar Forward had “awful customer service,” 13 and stated that Solar Forward “is not certified by the NABCEP [North American Board 14 of Certified Energy Practitioners].” (Id.) Plaintiffs contend that these statements were 15 defamatory and caused Solar Forward to lose clients. (Id. ¶ 22.) Based on these 16 allegations, Plaintiffs sued Vinkov for libel, slander, and trade libel in Riverside County 17 Superior Court. (See generally id.) 18 Much has happened in the state court proceeding over the past sixteen months. 19 20 Vinkov answered the Complaint and filed a crossclaim against Plaintiffs. (Levine Decl. 21 at Ex. C.) Plaintiffs responded by filing an Anti-SLAPP motion pursuant to California 22 Code of Civil Procedure § 425.16. (Id. at Ex. F.) On July 10, 2019, the court granted 23 that motion and dismissed Vinkov’s crossclaim. (Id. at Ex. G.) Vinkov then filed a 24 series of unsuccessful motions, including three to recuse the presiding Judge, the 25 Honorable Angel Bermudez. (Id. at Ex. K.) On May 14, 2020, Plaintiffs filed a motion 26 27 28 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for July 20, 2020 at 1:30 p.m. is hereby vacated and off calendar. -2- 1 to deem Vinkov a vexatious litigant. (Id. at Ex. R.) That motion is still pending. Trial 2 was originally scheduled for June 19, 2020, but was postponed due to the COVID-19 3 pandemic. (Id. ¶ 16.) On June 1, 2020, Vinkov removed the action pursuant to 28 U.S.C. 4 § 1446(b)(3). (See NOR.) Plaintiffs’ motion to remand followed shortly thereafter. 5 6 III. LEGAL STANDARD 7 8 9 A civil action brought in state court may be removed by the defendant to a federal district court if the action could have been brought there originally. 28 U.S.C. § 1441(a). 10 Principles of federalism and judicial economy require courts to “scrupulously confine 11 their [removal] jurisdiction to the precise limits which [Congress] has defined.” See 12 Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941). Accordingly, the burden 13 of establishing subject matter jurisdiction falls on the defendant, and the removal statute 14 is strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 15 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as to the right 16 of removal in the first instance.” Id. 17 18 IV. DISCUSSION 19 20 In deciding whether to grant Plaintiffs’ motion, the Court must determine whether 21 this case was properly removed under the procedures set forth in 28 U.S.C. § 1446. See 22 Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007) (holding that failure to 23 comply with section 1446 makes remand appropriate). Section 1446 governs the time 24 limits within which a defendant may remove a civil action from state court. See 28 25 U.S.C. § 1446(b). Specifically, it provides “two thirty-day windows during which a case 26 may be removed—[1] during the first thirty days after the defendant receives the initial 27 pleading or [2] during the first thirty days after the defendant receives a paper ‘from 28 which it may first be ascertained that the case is one which is or has become removable’ -3- 1 if ‘the case stated by the initial pleading is not removable.’” Harris v. Bankers Life and 2 Cas. Co., 425 F.3d 689, 692 (9th Cir. 2005) (quoting 28 U.S.C. § 1446(b)(3)). These 3 time limits are “mandatory and a timely objection to a late petition will defeat removal.” 4 Fistoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1989). 5 6 Vinkov’s removal in this case was untimely. Plaintiffs initially filed this action on 7 February 20, 2019, but Vinkov did not attempt remove it until June 1, 2020—nearly 8 sixteen months after it was filed. (See Compl.; NOR.) Thus, section 1446’s first thirty- 9 day window is inapplicable and Vinkov’s removal was only timely if it was filed within 10 thirty days of him receiving an “amended pleading, motion, order or other paper from 11 which it may first be ascertained that the case is one which is or has become removable.” 12 28 U.S.C. § 1446(b)(3) (emphasis added). Vinkov asserts that Plaintiffs filed an 13 amended pleading on May 8, 2020 and contends that this amended pleading triggered a 14 new thirty-day window for him to remove. (See NOR at 2.) This argument fails. 15 16 An amended pleading can provide a defendant with a fresh thirty-day window to 17 remove a case, but only if that pleading reveals for the first time that a case is removable. 18 28 U.S.C. § 1446(b)(3). That did not occur in this case. In May 2020, Plaintiffs filed an 19 amended pleading for the limited purpose of correcting a clerical error. (Levine Decl. at 20 Ex. S.) Specifically, their amended pleading changed the case caption to reflect the fact 21 that the name of the corporate Plaintiff is “Solar Forward Electric Inc.,” not “Solar 22 Forward.” (Id.) Plaintiffs filed this amended pleading “out of an abundance of caution 23 [to ensure that] all proper parties are in line for the jury trial.” (Id.) Outside of this minor 24 change, the amended pleading is identical to the original one. (Id.) It does not assert any 25 new claims, nor does it assert any new theories of recovery. 26 27 28 Vinkov offers no explanation for how this clerical amendment somehow made this action removable for the first time. Nor could he do so persuasively. Section 1446’s -4- 1 removal clock is not reset each time an amended pleading is filed—rather, the reset 2 occurs only if the amended pleading includes new information which allows the 3 defendant to ascertain for the first time that the action is removable. 28 U.S.C. 4 § 1446(b)(3). Of course, that standard has not been met here given that Plaintiffs’ 5 amended pleading merely altered the name of a party in the case caption—it did not 6 include any new facts or claims relevant to removability. If this action was indeed 7 removable, Vinkov should have removed it back in early 2019 when it was originally 8 filed.2 Because Vinkov’s removal was untimely under section 1446, Plaintiffs’ motion to 9 remand is GRANTED. See Fistoe, 615 F.2d at 1212. 10 Plaintiffs also request nearly $11,000 in attorneys’ fees and costs for filing the 11 12 motion to remand. (Dkt. 16-1 [Declaration of Bret D. Lewis].) “Courts may award 13 attorney’s fees under [28 U.S.C. § 1447(c)] only where the removing party lacked an 14 objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 15 U.S. 132, 141 (2005). “In applying this rule, district courts retain discretion to consider 16 whether unusual circumstances warrant a departure from the rule in a given case.” Id. 17 In this case, Vinkov did not have an objectively reasonable basis to seek removal 18 19 because removal was plainly foreclosed by 28 U.S.C. § 1446. However, “[i]n 20 determining whether to award attorneys’ fees in cases involving improper removal by a 21 pro se defendant, courts accord significant weight to the defendant’s lack of 22 representation.” Capital One, N.A. v. Sepehry-Fard, 2018 WL 4773535, at *3 (N.D. Cal. 23 Feb. 1, 2018) (internal quotations omitted). The Court is mindful of Vinkov’s pro se 24 status and, in its discretion, declines award Plaintiffs their requested attorneys’ fees and 25 costs. See Quality Investment Grp., Inc. v. Silverman, 2020 WL 1322954, at *2 (N.D. 26 27 28 2 Given the glaring procedural deficiencies in Vinkov’s removal, the Court need not address the substantive question of whether it would have had original jurisdiction over this action pursuant to either 28 U.S.C §§ 1331 or 1332. -5- 1 Cal. Mar. 20, 2020) (declining to award fees even though there was no reasonable basis 2 for removal because defendant was pro se). Accordingly, that request is DENIED. 3 4 V. CONCLUSION 5 6 7 For the following reasons, Plaintiffs’ motion to remand is GRANTED. This action is hereby remanded to Riverside County Superior Court. 8 9 10 11 DATED: July 6, 2020 __________________________________ CORMAC J. CARNEY 12 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-
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