De Callier v. De Callier ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Angelina De Callier, ) No. CV 19-0319 TUC LAB 9 ) Plaintiff, ) ORDER 10 ) vs. ) (Amended) 11 ) ) 12 Case De Callier, ) ) 13 Defendant. ) ) 14 ) 15 Pending before the court is the plaintiff’s motion, filed on October 22, 2019, to 16 remand this case to state court. (Doc. 18) 17 The plaintiff in this action claims the defendant assaulted her and intentionally 18 inflicted emotional distress. (Doc. 1-3, p. 1) The case was originally filed in Pima County 19 Superior Court, but it was removed to this court by the plaintiff when the defendant filed for 20 bankruptcy. (Doc. 18, p. 1) Apparently, the plaintiff was under the impression that she was 21 required to remove the case or it might be waived. (Doc. 20, p. 2) The bankruptcy court 22 recently terminated its automatic stay, and shortly thereafter, the plaintiff filed the pending 23 motion to remand. (Doc. 18, p. 2) 24 The plaintiff argues that remand is appropriate because this court has no jurisdiction 25 over her action. (Doc. 18) That is not entirely true. “The district courts . . . have original 26 but not exclusive jurisdiction of all civil proceedings . . . related to cases under title 11.” 28 27 U.S.C. § 1334(b) The plaintiff’s action is “related to” the defendant’s bankruptcy case 28 because the outcome of her action could “alter the debtor’s . . . liabilities” and impact “the 1 handling and administration of the bankrupt estate.” In re Marshall, 600 F.3d 1037, 1055 2 (9th Cir. 2010), aff'd sub nom. Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594 (2011). This 3 court, therefore, has jurisdiction over her action. That is why she was able to remove her 4 case to this court pursuant to 28 U.S.C. § 1452(a), which permits removal of any claim or 5 cause of action for which the district court has jurisdiction under § 1334. 6 Now, the plaintiff moves that this court remand her action to state court. (Doc. 18) 7 The court presumes she is acting pursuant to 28 U.S.C. § 1452(b), which states that this court 8 may remand a claim or cause of action previously removed pursuant to § 1452(a) “on any 9 equitable ground.” 10 The court finds that this action should be remanded to state court in the interest of 11 comity. The case involves only state common law claims. Moreover, the case involves the 12 domestic relations of two citizens of Arizona. There is no federal legal interest here. 13 The defendant opposes remand. (Doc. 19) First, he argues that this court does have 14 jurisdiction over this action, contrary to the plaintiff’s assertion, pursuant to 28 U.S.C. § 15 157(b)(5). The court agrees that there is jurisdiction over the plaintiff’s action. (See above) 16 The court expresses no opinion as to whether this court has jurisdiction pursuant to § 17 157(b)(5). As the court explained above, however, the fact that this court has jurisdiction 18 does not preclude remand to state court. 19 The defendant further argues that remand is no longer possible because more than 30 20 days have elapsed since removal. (Doc. 19, p. 2) He argues that remand is only possible 21 now if the court lacks subject matter jurisdiction, which it does not, pursuant to 28 U.S.C. 22 § 1447(c). (Doc. 19, p. 2) The plaintiff, however, is not seeking remand pursuant to § 23 1447(c). He is seeking remand pursuant to § 1452(b), and that statute has no deadline. See 24 In re Hotel Mt. Lassen, Inc., 207 B.R. 935, 939 (Bankr. E.D. Cal. 1997) (“There being no 25 specified deadline, any motion to remand under § 1452(b) and Rule 9027(d) is timely.”). 26 The defendant further argues that remand is not favored by judicial economy because 27 the state court can grant a judgment but it “cannot determine whether or not said claim is 28 dischargable in bankruptcy.” (Doc. 19, pp. 2-3) That is true. But there is judicial economy 1 || in permitting the state court to adjudicate state common law claims. Furthermore, this court 2 || presumes that the state court takes particular interest in adjudicating matters concerning the 3 || domestic relations of its citizens. The equities favor remand. 4 Finally, the defendant argues that this court should award him fees and costs pursuant 5 || to 28 U.S.C. § 1447(c) because “the removal and remand were both instigated by Plaintiff.” 6 || (Doc. 19, p. 3) (emphasis in original) But as the court explained above, remand here 7 | proceeds under § 1452(c) not § 1447(c). Moreover, the court is not convinced that the 8 || plaintiff “instigated” the litigation in this court. It appears that removal occurred when the 9 || defendant persuaded the plaintiff that once the bankruptcy case was filed, she must remove 10 |] her action or risk losing it. (Doc. 20, p. 1) The court expresses no opinion as to whether the 11 || defendant’s advice was correct. But see, In re Thomas, 211 B.R. 838, 843 (Bankr. D.S.C. 12 || 1997). The court simply holds that the defendant should be equitably estopped from using 13 || the plaintiffs reliance on his advice as a sword to make her pay his fees and costs. 14 15 IT IS ORDERED that this action is remanded to the Pima County Superior Court. 16 || Each party shall pay his or her own fees and costs. The Clerk is instructed to close this case. 17 18 DATED this 12" day of December, 2019. 19 20 21 22 23 Ree QO Bowman Leslie A. Bowman 24 United States Magistrate Judge 25 26 27 28 -3-