US Bank National Association v. Cominsky et al, No. 1:2017cv03098 - Document 10 (E.D. Wash. 2017)

Court Description: ORDER GRANTING PLAINTIFFS MOTION TO REMAND TO SUPERIOR COURT. Plaintiffs Motion to Remand to Superior Court ECF No. 6 is DENIED as moot. Plaintiffs Motion to Remand to Superior Court ECF No. 8 is GRANTED. Defendants in forma pauperis status is REVOKED. Case remanded to Yakima County Superior Court. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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US Bank National Association v. Cominsky et al Doc. 10 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 US BANK NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2013 SC3 TITLE TRUST 9 Plaintiff, NO: 1:17-CV-3098-TOR ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR COURT 10 v. 11 12 13 JULIE COMINSKY, PAUL COMINSKY, AND ALL OCCUPANTS OF THE PREMISES LOCATED AT 807 HENNESSY RD., YAKIMA, WA 98908, 14 Defendants. 15 BEFORE THE COURT are Plaintiff’s Motions to Remand to Superior Court 16 17 (ECF Nos. 6 and 8). These matter were submitted for consideration without oral 18 argument. The Court has reviewed the briefing, and the record and files herein, 19 and is fully informed. 20 // ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR COURT ~ 1 Dockets.Justia.com 1 BACKGROUND 2 In March 2017, Plaintiff US Bank National Association as Legal Title 3 Trustee for Truman 2013 SC3 Title Trust (“US Bank”) served its Complaint for 4 Forcible or Unlawful Detainer in Yakima County Superior Court on and against 5 Defendants Paul and Monica Cominsky (“Defendants”), seeking an order issuing a 6 writ of restitution. ECF No. 5 at 9-11. Specifically, US Bank acquired title to real 7 property located at 807 Hennessy Road, Yakima, WA 98908, on December 30, 8 2016, through a non-judicial foreclosure sale. ECF Nos. 6 at 1; 8 at 1. On June 2, 9 2017, US Bank scheduled a show cause hearing before the Yakima County 10 Superior Court. ECF Nos. 6 at 2; 8 at 2. However, shortly thereafter, Defendants 11 Julie and Paul Cominsky (“Defendants”) filed a Notice of Removal of Case to 12 Federal Court Pursuant to 28 U.S.C. § 1331 and § 1446, which vacated the show 13 cause hearing See ECF No. 5. 14 In their notice of removal, Defendants asserted removal jurisdiction on the 15 basis of a federal question pursuant to 28 U.S.C. § 1441 because US Bank 16 allegedly failed to provide notice under the Tenants at Foreclosure Act, 12 U.S.C. 17 § 5220, and supplemental jurisdiction with respect to any remaining claims, 18 pursuant 28 U.S.C. § 1367. Id. 19 // 20 // ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR COURT ~ 2 1 In the instant motions, US Bank moves to remand this case back to the 2 Yakima County Superior Court. 1 ECF Nos. 6; 8. Plaintiff filed its second motion 3 because it did not serve the first motion at Defendants’ correct address. Compare 4 ECF Nos. 7 at 3 (incorrectly addressed to 804 Hennessy Road), with 9 at 3 5 (correctly addressed to 807 Hennessey Road). 6 Because Plaintiff’s claim is strictly based upon state law, US Bank asserts 7 that removal based on federal question jurisdiction is improper. ECF Nos. 6 at 3; 8 8 at 3. Defendants were required to file a responsive memorandum to Plaintiff’s 9 second motion (ECF No. 8) by August 8, 2017. See LR 7.1(b)(2)(A) (21 days after 10 the mailing of the nondispositive motion). However, Defendants have failed to 11 respond. 2 12 // 13 // 14 15 16 17 18 19 1 US Bank’s motions refer to Snohomish County Superior Court. ECF Nos. 6 at 1; 8 at 1. The Court recognizes these are inadvertent errors because US Bank’s Complaint was initially filed in and removed from the Yakima County Superior Court. See ECF No. 5. 2 The failure to timely respond may be considered by the Court as “consent to the entry of an Order adverse to the [defaulting] party[.]” LR 7.1(d). 20 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR COURT ~ 3 1 DISCUSSION 2 Title 28 United States Code Section 1441 governs removal of cases from 3 state court to federal court. Generally, a defendant may remove a case to federal 4 court if the federal court would have subject-matter jurisdiction over one or more 5 of the plaintiff’s claims pursuant to 28 U.S.C. §§ 1331 (federal question) or 1332 6 (diversity of citizenship).3 See 28 U.S.C. § 1441(a), (b). “The defendant bears the 7 burden of establishing that removal is proper.” Provincial Gov’t of Marinduque v. 8 Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). 9 Under federal question jurisdiction, federal district courts have original 10 jurisdiction over all claims “arising under the Constitution, laws, or treaties of the 11 United States.” 28 U.S.C. § 1331. Because a defendant may remove a case only if 12 the claim could have been brought in federal court, 28 U.S.C. § 1441(b), whether a 13 suit arises under federal law is determined by the well-pleaded complaint rule, 14 which provides that federal jurisdiction exists “only when a federal question is 15 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar 16 Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, when federal law creates the 17 cause of action asserted, the case arises under federal law and will allow for 18 19 3 20 for in 28 U.S.C. § 1447(c). US Bank timely moved to remand pursuant to the 30-day period provided ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR COURT ~ 4 1 removal under Section 1331. Gunn v. Minton, 568 U.S. 251, 133 S.Ct. 1059, 1064 2 (2013). It is well established, however, that “[a] defense that raises a federal 3 question is inadequate to confer federal jurisdiction.” Merrell Dow Pharm., Inc. v. 4 Thompson, 478 U.S. 804, 808 (1986) (emphasis added). 5 Examination of US Bank’s Complaint under the well-pleaded complaint 6 rule, Caterpillar Inc. v. Williams, 482 U.S. at 392, reveals no federal causes of 7 action. Rather, US Bank’s Complaint is solely grounded on Washington state law, 8 to wit: RCW 59.12 and RCW 61.24.060. See ECF No. 5 at 9-11. The 9 supplemental jurisdiction statute, 28 U.S.C. § 1367(a), does not save this action 10 without a viable federal law claim. Moreover, any defense raised by Defendants 11 cannot confer federal jurisdiction. See Merrell Dow 478 U.S. at 808. Therefore, 12 Defendants’ removal is improper and remand is appropriate. 13 Further, pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken 14 in forma pauperis if the trial court certifies in writing that it is not taken in good 15 faith.” The good faith standard is an objective one, and good faith is demonstrated 16 when an individual “seeks appellate review of any issue not frivolous.” See 17 Coppedge v. United States, 369 U.S. 438, 445 (1962). For purposes of 28 U.S.C. § 18 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. 19 Williams, 490 U.S. 319, 325 (1989). 20 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR COURT ~ 5 1 The Court finds that any appeal of this Order would not be taken in good 2 faith and would lack any arguable basis in law or fact. Accordingly, the Court also 3 hereby revokes Defendants’ in forma pauperis status. 4 ACCORDINGLY, IT IS HEREBY ORDERED: 5 1. 6 7 Plaintiff’s Motion to Remand to Superior Court (ECF No. 6) is DENIED as moot. 2. 8 Plaintiff’s Motion to Remand to Superior Court (ECF No. 8) is GRANTED. 9 2. Defendants’ in forma pauperis status is REVOKED. 10 3. This matter is REMANDED to the Yakima County Superior Court, 11 12 State of Washington, for all remaining proceedings. The District Court Executive is directed to enter this Order, provide copies 13 to counsel, mail a certified copy of this Order to the Clerk of the Yakima County 14 Superior Court, and CLOSE the file. 15 DATED August 25, 2017. 16 17 THOMAS O. RICE Chief United States District Judge 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND TO SUPERIOR COURT ~ 6

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