Quality Investment Group, Inc. v. Silverman ( 2020 )


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  • 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 QUALITY INVESTMENT GROUP, INC., Case No. 20-cv-01239-EMC 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION TO REMAND; AND FINDING MOOT PLAINTIFF’S 10 GARY B. SILVERMAN, et al., MOTION TO EXPEDITE 11 Defendants. Docket Nos. 11, 13 12 13 Plaintiff Quality Investment Group, Inc. initiated this action in state court. The operative 14 complaint (the second amended complaint) named multiple individuals as defendants, including 15 Cynthia Gawley-Uy. Ms. Gawley-Uy removed the case from state to federal court on February 16 19, 2020. Currently pending before the Court is Quality’s motion to remand the action back to 17 state court. The Court hereby GRANTS Quality’s motion. 18 As a preliminary matter, the Court notes that Ms. Gawley-Uy has moved for a continuance 19 – implicitly, a continuance of both the hearing date and her time to file an opposition to the motion 20 to remand. The motion to continue the hearing date is moot because the Court is hereby 21 VACATING the hearing date as the matter can be resolved based on the papers only (i.e., no oral 22 argument is necessary). As to Ms. Gawley-Uy’s motion to continue, it is based on a medical 23 condition. Although this circumstance would ordinarily weigh in favor of a continuance, the 24 Court DENIES the continuance for two reasons. First, Ms. Gawley-Uy’s ability to seek a 25 continuance from this Court suggests that she is also medically capable of filing an opposition. 26 Second, the issue before the Court is clear cut, and the Court is already informed of Ms. Gawley- 27 Uy’s position on subject matter jurisdiction based on the content of her notice of removal. 1 because Ms. Gawley-Uy did not remove until after the state court had already entered a judgment 2 against her on February 7, 2020. See Gonsalves Decl. ¶ 5 (testifying that a judgment for 3 possession was entered in Quality’s favor on 2/7/2020); Gonsalves Decl., Ex. C (application filed 4 by Ms. Gawley-Uy, asking the state court to quash the entry of default judgment). “[R]emoval is 5 generally not possible where the state court, as here, has issued a judgment (admittedly, by 6 default) . . . .” Catamount Props. 2018, LLC v. Paed, No. 19-cv-08123-EMC, 2020 U.S. Dist. 7 LEXIS 32160, at *2 (N.D. Cal. Feb. 25, 2020); see also Ristuccia v. Adams, 406 F.2d 1257, 1258 8 (9th Cir. 1969) (“It would seem obvious that to remove an action to the federal courts from a state 9 court, it must first be pending in the state court.”). 10 Moreover, a remand is warranted in the instant case because the Court has no subject 11 matter jurisdiction. Contrary to what Ms. Gawley-Uy indicates in her notice of removal, federal 12 question jurisdiction is lacking. The issue of whether a claim arises under federal law (for 13 purposes of federal question jurisdiction under 28 U.S.C. § 1331) is determined by reference to the 14 well-pleaded complaint. See Catamount, 2020 U.S. Dist. LEXIS 32160, at *5. A defendant 15 cannot create federal question jurisdiction by raising a defense based on federal law or asserting a 16 counterclaim based on federal law. See id. at *5-6. 17 In addition, removal cannot be predicated on diversity jurisdiction. First, Ms. Gawley-Uy 18 appears to be a citizen of California. Therefore, under 28 U.S.C. § 1442(b)(2), she is not 19 permitted to remove on the basis of diversity jurisdiction. See 28 U.S.C. § 1442(b)(2) (providing 20 that, where the basis of jurisdiction is diversity jurisdiction, removal is not permitted “if any of the 21 parties in interest properly joined and served as defendants is a citizen of the State in which such 22 action is brought”). Second, even if § 1442(b)(2) were not a bar, there does not appear to be 23 diversity jurisdiction. Ms. Gawley-Uy has not shown that the amount in controversy exceeds 24 $75,000. See 28 U.S.C. § 1332(a) (providing that “[t]he district courts shall have original 25 jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of 26 $75,000 . . . and is between . . . citizens of different States”); see also SAC at 6 (in the prayer for 27 relief in the second amended complaint, asking for “damages in the amount of $100.00 per day 1 through the date of entry of Judgment”). 2 The only issue remaining for the Court is whether to award Quality attorney fees pursuant 3 || to28 U.S.C. § 1447(c). 4 The “award of fees under § 1447(c) is left to the district court’s discretion.” The standard for awarding fees turns “on the 5 reasonableness of the removal.” Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the 6 removing party lacked an objectively reasonable basis for seeking removal.” Nevertheless, “[i]n determining whether to award 7 attorneys’ fees in cases involving improper removal by a pro se defendant, courts accord significant weight to the defendant’s lack 8 of representation.” 9 Capital One, N.A. v. Sepehry-Fard, No. 17-cv-07241-BLF, 2018 U.S. Dist. LEXIS 230998, at *9 10 || (N.D. Cal. Feb. 7, 2018). 11 In Capital One, Judge Freeman denied a request for fees under § 1447(c) because the || removing defendant was “proceeding pro se and attempted for the first time to remove [the] 13 unlawful detainer action.” Jd. Similarly, in OneWest Bank, FSB v. Sanchez, No. C 10-00936 SI, v 14 2010 U.S. Dist. LEXIS 88880 (N.D. Cal. Aug. 5, 2010), Judge Ilston denied a fee request under § O 15 1447(c), taking note that, even though “it is plain that there was no proper basis for removal[,] □ □ . Q 16 || defendants are proceeding pro se, and apparently believed that asserting federal statutes in defense 3 17 of this action presented a basis for removal.” Jd. at *4. The Court, in its discretion, declines to 18 award fees in the instant case for similar reasons. 19 In summary, Quality’s motion to remand is granted but the fee request is denied. The 20 || Clerk of the Court shall promptly remand the instant action back to state court. The hearing on the 21 motion to remand is vacated and Quality’s motion to expedite is deemed moot. 22 This order disposes of Docket Nos 11 and 13. 23 24 IT IS SO ORDERED. 25 26 Dated: March 20, 2020 LL 27 | : hfs ED M. CHEN 28 United States District Judge

Document Info

Docket Number: 3:20-cv-01239

Filed Date: 3/20/2020

Precedential Status: Precedential

Modified Date: 6/20/2024