-JLT U.S. Bank National Association as Trustee v. Gonzales, No. 1:2011cv00060 - Document 8 (E.D. Cal. 2011)

Court Description: ORDER GRANTING Motion to Remand; Granting in Part Request for Attorneys' Fees and Costs; and Denying Request to Bar Future Removals 3 , signed by Judge Oliver W. Wanger on 3/16/2011. ((1) This action is REMANDED to Kern County Superior Court ; (2) Plaintiffs request for $2,100.00 in attorneysfees and costs associated with this remand motion is GRANTED IN PART; Plaintiff shall recover only $1,500.00 in attorneys fees; (3) Plaintiffs request for an injunction against future remov als of this action is DENIED;(4) Plaintiffs proposed order, Doc. 6, filed March 15, 2011, SHALL BE DISREGARDED; and (5) Plaintiff shall re-submit a proposed order consistent with this memorandum decision within five (5) days of electronic service.) (Gaumnitz, R)
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-JLT U.S. Bank National Association as Trustee v. Gonzales Doc. 8 1 UNITED STATES DISTRI CT CO URT 2 FOR THE EASTERN DISTRICT OF C ALIFORNIA 3 4 5 U.S. BAN K NATIONAL ASSOCIAT ION, as Trus tee, v. 7 9 ORDER GR ANTING MOTION TO REMAND; GRANTI NG IN PART REQUEST FOR AT TORNEYS’ FEES AND COSTS ; AND DENYING REQUES T TO BAR FUTURE R EMOVAL S (DOC. 3) Plaintiff, 6 8 1:11-cv- 00060 OWW JLT BEATRIZ GONZALES; an d DOES 1 through 100, inclusi ve, Defendants . 10 11 12 13 This act ion concerns real property located at 120 0 Dorian D rive, Bakers field, California 93304 (“Sub ject 14 Property ”). 15 purchase d the proper ty pursuant to a Trustee’s De ed Upon 16 sale, re corded on or about November 1, 2010 in th e 17 18 19 20 21 Plainti ff, U.S. Bank Nat ional Association, Official Records of Kern County. Complain t, at ¶ 4. See Doc. 1, Ex. 1, On November 17, 2010, Plaintiff filed an Unlaw ful Detainer action regarding the Subject Property against Def endant Beatriz Gonzales in Ke rn 22 County S uperior Cour t - Metropolitan Judicial Dis trict. 23 See Complaint. 24 December 5, 2010, Do c. 3- 2, Ex. 2 (proof of perso nal 25 service upon Beatriz Gonzales), Defendant failed to 26 27 28 After being served with the Complaint on answer a nd default j udgment was entered on Januar y 4, 2011. 1 Dockets.Justia.com 1 2 3 4 5 6 7 On Janua ry 12, 2011, Defendant, who proceeds pro se, removed this action to federal court. Plaintiff timely filed it s motion to remand on February 10, 2011 p ursuant to Title 28 U.S.C. § 1447(c)(motion to remand on the basis of any defect other than lack of subject ma tter jurisdic tion must be made within 30 days of filin g of 8 notice o f removal). 9 Defendant did not file an oppositi on. 10 Remand i s required h ere because removal was untim ely. 11 Notice o f removal of a civil action must be filed “within 12 13 14 15 16 thirty d ays after th e receipt by the defendant, t hrough service or otherwise , of a copy of the initial pl eading setting forth the claim or relief upon whic h such acti on or proce eding is bas ed....” 28 U.S.C. § 1446(b). Here, 17 Defendan t was person ally served on December 5, 20 10. 18 notice o f removal, f iled more than thirty days la ter on 19 January 12, 2011, wa s therefore untimely. 20 21 22 23 24 The Even if the notice o f removal had been timely, th e case doe s not satisf y the requirements of the rem oval statute, 28 U.S.C. § 1441, which provides that a defendan t may remove to federal court any action over 25 which th e federal co urt would have original jurisdiction: 26 Except a s otherwise expressly provided by Act of Congress , any civil action brought in a State court of which the d istrict courts of the United States h ave original jurisdiction, may be 27 28 2 1 2 3 4 5 6 7 removed by the defen dant or the defendants, to the dist rict c ourt o f the Uni ted States for the district and divisio n embracing the place where such act ion is pendi ng. For purposes of removal under th is chapter, the citizenship of defendan ts sued unde r fictitious names shall be disregar ded. 28 U.S.C . § 1441(a). Federal courts have original jurisdiction over ci vil 8 actions arising unde r the U.S. Constitution, fede ral 9 laws, or treaties of the United States -- so called 10 “federal questions.” 11 jurisdic tion is gove rned by the “well-pleaded complain t 12 13 14 15 16 28 U.S.C. § 1331. Federal Question rule,” w hich provide s that the federal question m ust be presente d on the fac e of the plaintiff’s properly pleaded complain t. Wa yne v. DHL Worldwide Express, 294 F .3d 1179, 11 83 (9th Cir. 2002). The existence of a d efense 17 based on federal law is insufficient. 18 is no fe deral questi on jurisdiction because the f ace of 19 the comp laint reveal s only one claim: a state law cause 20 21 22 23 24 Id. Here, ther e of actio n for Unlawf ul Detainer arising under Cal ifornia Code of Civil Proced ure §1161(a), a local action involvin g the law of real property and contract. Alternat ively, a Fed eral Court may assert origina l 25 jurisdic tion over ci vil actions where the matter in 26 controve rsy exceeds $75,000 in value, exclusive o f 27 interest and costs, and is between citizens of di fferent 28 3 1 States, pursuant to the “diversity” statute, 28 U .S.C. § 2 1331. 3 4 5 6 7 E ven assuming the truth of the allegation in the complain t that the a mount in controversy is $95,0 00, removal of diversity cases is limited to situatio ns where “none of the parties in interest properly joined and served a s defendants is a citizen of the State in which 8 such act ion is broug ht.” 9 on Beatr iz Gonzales’ admitted residence in Califo rnia, 10 Doc. 1 a t 2, and the absence of any other allegat ion 11 suggesti ng her citiz enship is elsewhe re, it appears that 12 13 14 15 16 28 U.S.C. 1441(b). Her e, based Defendan t is a citiz en of the state in which this action is broug ht and there fore is barred from removing this case to federal cour t. Plaintif f also reque sts that it be allowed to rec over 17 its reas onable fees and costs incurred in filing this 18 motion f or remand, i n the amount of $2,100.00. 19 § 1447 p rovides that “[a] n or der remanding the ca se may 20 21 22 23 24 2 8 U.S.C. require payment of j ust costs and any actual expe nses, includin g attorney f ees, incurred as a result of the removal. ” “Ab sent unusual circumstances, courts may award at torney’s fee s under § 1447(c), only where the 25 removing party lacke d an objectively reasonable b asis for 26 seeking removal.” 27 U.S. 132 , 141 28 Martin v. Franklin Capit al Corp., 546 (2005). A pro se defe ndant is “entitle d 4 1 to more leeway in hi s attempt to comply with the removal 2 statute, as long as it was not objectively unreas onable.” 3 4 5 6 7 HSBC Ban k USA, N.A. v. Bryant, 2009 WL 3787 195 (S .D. Cal. Nov. 10, 2009). Nevertheless, pro se litig ants “ must follow t he same rule s of procedure that gov ern ot her litigant s.” K ing v. Atiyeh, 814 F.2d 565, 567 (9 th Ci r. 8 1987). 9 her remo val, which f ails to comply with the facia l 10 requirem ents of the removal statute. 11 12 13 14 15 16 Defend ant has failed to offer any e xplana tion for Plaintif f’s request for $2,100.00 in fees include d 4.0 bill able hours ( at $175.00/hour) for a total of $700.00 to prepare t he motion. The request also anticipa ted eight ho urs of billable time to prepa re a reply an d attend the hearing, an additional $1,400.00. 17 In light of Defendan t’s non-oppositio n and Plaint iff’s 18 failure to file a re ply, this eight-hour al locati on is 19 excessiv e. 20 21 22 23 24 Defendan t’s total recovery shal l be l imite d to $1,50 0.00, which reflects time spent preparing the motion a nd a reasona ble fee for defen se counsel’s personal attendance at the hearing. Finally, Plaintiff r equests a court order barring 25 future r emovals in t his action. 26 when par ties file mu ltiple frivolous removals, th e Court 27 may bar any future r emovals of that state a ction. 28 5 Courts have rule d that U.S. 1 Bank Nat ’l Ass’n v. Garcia, 2 010 WL 3505093 (Sept. 3, 2 2010). 3 4 5 6 Plaintiff ha s not presented evidence of p revious frivolou s removals w arranting an injunction again st future r emoval activ ity. One incident does not a pattern make. CONCLUSION 7 8 For the reasons set forth above: 9 (1) This action is R EMANDED to Kern County Superi or 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Court; (2) Plai ntiff’s requ est for $2,100.00 in attorney ’s fees and costs assoc iated with this remand motion is GRANTED IN PART; Pla intiff shall recover only $1, 500.00 in attor ney’s fees; (3) Plai ntiff’s requ est for an injunction against future r emovals of t his action is DENIED; (4) Plai ntiff’s prop osed order, Doc. 6, filed Mar ch 15, 2011 , SHALL BE D ISREGARDED; and (5) Plai ntiff shall re-submit a proposed order consiste nt with this memorandum decision within f ive (5) days of electronic s ervice. 24 25 26 IT IS SO ORDERED Dated: March 16, 20 11 /s/ Oliver W. Wa nger United States Distri ct Judge 27 28 6