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Mansu v. Kennedy

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 15, 2009

LEO MANSU, AN INDIVIDUAL; LISA FIDELDY, AN INDIVIDUAL; JERRY HARPER, AN INDIVIDUAL; DANEILLE HONODEL-HARPER, AN INDIVIDUAL; BARBARA ROSE, AN INDIVIDUAL; AND RICHARD SIEGFRIED, D.C., AN INDIVIDUAL, PLAINTIFFS,
v.
WILLIAM J. KENNEDY AKA BILL KENNEDY, INDIVIDUALLY AND D/B/A AMERICAN LEGAL SERVICES, D/B/A THE EAR OF MALCHUS, D/B/A THE LOST SHEEP; THE EAR OF MALCHUS, A WASHINGTON CORPORATION; THE LOST SHEEP, A WASHINGTON CORPORATION; LYLE E. DAVIES, INDIVIDUALLY AND D/B/A FINANCIAL WELL-BEING SOLUTIONS; KENNETH L. REISWIG AKA KENNY L. REISWIG, INDIVIDUALLY AND D/B/A THE SILVER TRUMPETS; THE SILVER TRUMPETS, A WASHINGTON CORPORATION; RITA I. JOHNSON AKA RITA A. JOHNSON, INDIVIDUALLY AND D/B/A HER COPYRIGHT; JUDITH RODERICK, AN INDIVIDUAL; DANNY V. SESE, INDIVIDUALLY AND D/B/A GENTRY GROUP; GENTRY GROUP, A TEXAS CORPORATION; JEROME WEBB, AN INDIVIDUAL; KURT F. JOHNSON, AN INDIVIDUAL; D. SCOTT HEINEMAN AKA DALE SCOTT HEINEMAN, AN INDIVIDUAL; TONY SCARLOTTA, AKA TONI SCARLOTTA, AN INDIVIDUAL; NEW CENTURY MORTGAGE CORPORATION, AN UNKNOWN BUSINESS ENTITY; COURTESY AUTOMOTIVE CENTER, AN UNKNOWN BUSINESS ENTITY; COURTESY CHEVROLET CADILLAC SUZUKI, AN UNKNOWN BUSINESS ENTITY; JOHN GROUP; BEN WELLS AKA BENJAMIN WELLS, AN INDIVIDUAL; JEFF AULT AKA JEFFREY AULT, AN INDIVIDUAL; VICK SINGH, AN INDIVIDUAL; INTERNATIONAL ASSOCIATION OF CORPORATION SOLE, AN UNKNOWN ENTITY; PETER KIM, INDIVIDUALLY AND D/B/A SKM DEBT SERVICES; SUSAN W. KIM, INDIVIDUALLY AND D/B/A SKM DEBT SERVICES; RICHARD LALONDE AKA RICK LALONDE; JERRY COOK AKA JEROME COOK; INDYMAC BANK, A CALIFORNIA CORPORATION; DARRYL LEBARTHE, AN INDIVIDUAL; WB FINANCIAL, A CALIFORNIA CORPORATION; JEROME WEBB, AN INDIVIDUAL; NICHOLE KLAUSNER, AN INDIVIDUAL; FINANCIAL TITLE COMPANY, A CALIFORNIA CORPORATION; AND DOES 1-100, INCLUSIVE, DEFENDANTS.

ORDER RE: MOTIONS FOR RECONSIDERATION

Plaintiffs Leo Mansu, Lisa Fideldy, Jerry Harper, Deneille Honodel-Harper, Barbara Rose, and Richard Siegfried D.C. filed this action in state court alleging that multiple defendants conspired in a fraudulent "debt elimination" scheme involving home mortgages and car loans. After the case was removed to this court, the court issued an Order on December 24, 2008, that dismissed plaintiffs' claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c), and remanded the action to state court. Defendants Courtesy Oldsmobile-Cadillac Inc. ("Courtesy"), Benjamin Wells, Judith Roderick, Kenneth Reiswig, Effie Reiswig, The Silver Trumpets, and Duane Johnson as representative of Rita Johnson now move for reconsideration of that Order. (Docket Nos. 85, 89.) Because defendants' motions are so lacking in merit, the court finds no need to hear any argument in opposition before rendering its decision.

I. Factual and Procedural Background

Plaintiffs filed their Complaint in state court on May 1, 2008, alleging nine claims under California state law and a single federal claim under RICO. Courtesy filed a notice of removal to this court on August 26, 2008, which was subsequently joined by several other defendants. (Docket Nos. 1, 7, 8.) Plaintiffs contended that removal was procedurally defective and moved to remand the case to state court, but the court denied their motion on November 12, 2008. (Id. Nos. 11, 60.)

After denying plaintiffs' motion to remand, the court was scheduled to hear oral argument on December 8, 2008, regarding a motion to dismiss filed by defendants Judith Roderick, Kenneth Reiswig, Effie Reiswig, The Silver Trumpets, and Duane Johnson as representative of Rita Johnson. (Id. No. 6.) In their opposition to the motion to dismiss, however, plaintiffs indicated that they intended to dismiss their RICO claim and again seek remand to state court. (Pls.' Opp'n to Mot. to Dismiss 4.)

Plaintiffs subsequently filed a motion for leave to amend the Complaint in order to dismiss their RICO claim. (Id. No. 70.) The court continued the scheduled hearing on the motion to dismiss and requested briefing from the parties on plaintiffs' motion. (Id. No. 73.) After carefully considering the parties' briefs, the court granted plaintiffs' motion for leave to amend the Complaint, dismissed their RICO claim, and remanded the case to state court. (Id. No. 84.) These motions for reconsideration followed.

II. Discussion

Defendants contend that they were not afforded an opportunity to brief whether it would be proper for the court to remand this case to state court after dismissal of the sole federal claim in the Complaint. In its December 4, 2008 Order, however, the court provided a briefing schedule for defendants to oppose plaintiffs' motion to amend the Complaint. (Id. No. 73.) In their opposition, moreover, defendants were plainly aware that remand was the principal aim of plaintiffs' motion. Defendants argued,

Plaintiffs' transparent--and erroneous--attempt to oust this [c]court of jurisdiction by manipulating their Complaint relies on a misstatement of the law of the Ninth Circuit. The Courtesy Defendants thus oppose Plaintiff's Motion for Leave to the extent that assent could be construed as agreement that dismissal of [the RICO claim] mandates or in any way suggests that remand is appropriate.

(Defs. Courtesy & Wells' Opp'n Mot. Amend Compl. 3; see Defs. Roderick et al.'s Opp'n Mot. Amend Compl. 4.)

Despite defendants' own awareness of the prospect of remand, their repeated reference to the court's "sua sponte" Order in their motions for reconsideration (no less than nine times) intimates that the court somehow conceived of the idea to remand this action on its own accord. (See Defs. Courtesy & Wells' Opp'n Mot. Reconsid. 2-4, 8, 10; Defs. Roderick et al.'s Mot. Reconsid. 3.) To the contrary, as defendants were well aware, plaintiffs had consistently reiterated their intent to litigate the case in state court (see, e.g., Docket Nos. 11, 29, 31-32, 62) and asserted that, prior to the hearing on defendants' motion to dismiss, they would "dismiss[] the RICO cause of action from the Complaint" in order to have the case "remanded back to state court" (id. No. 62).

Ultimately, regardless of whether defendants believe that they had sufficient opportunity to be heard on the issue of remand, they have now been heard, and the court finds their arguments wholly unpersuasive.

As reiterated in its orders in this case, the court is fully aware that subsequent amendments to a complaint after removal do not divest a court of federal jurisdiction. (See Nov. 11, 2008 Order 3-4 n.2 (citing Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1046 (9th Cir. 2000)); Dec. 24, 2008 Order (same).) Thus, contrary to defendants' suggestion, the court did not "allow[]" plaintiffs to "defeat federal jurisdiction" by amending the Complaint. (Defs. Courtesy & Wells' Mot. Reconsid. 5.) Instead, well before it had issued a Status (Pretrial Scheduling) Order, the court properly exercised its discretion to remand the action to state court because the case exclusively involved matters of state law. See Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) ("It is generally within a district court's discretion either to retain jurisdiction to adjudicate the pendent state claims or to remand them to state court." (citing Price v. PSA, Inc., 829 F.2d 871, 876 (9th Cir. 1987))); see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000-01 (9th Cir. 1997) (en banc) ("The Supreme Court has stated, and [the Ninth Circuit] ha[s] often repeated, that 'in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.'" (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988))).

Although defendants contend that "federal courts have almost universally denounced such actions" (Defs. Courtesy & Wells' Mot. Reconsid. 4), they present scant support for their sweeping proposition. Indeed, the court's resolution of this matter appears rather commonplace. See, e.g., Stuart v. City of Dillon, No. 08-12, 2008 WL 3887656, at *1 (D. Mont. Aug 21, 2008) ("A plaintiff may amend claims in an action removed to federal court by dismissing federal claims, thereby waiving his ability to pursue the federal claims, 'clarifying his intent to "avoid federal jurisdiction by exclusive reliance on state law[,]"' and properly resulting in a remand of the case to state court." (quoting Schuster v. Gardner, 319 F. Supp. 2d 1159, 1165 (S.D. Cal. 2003) (alterations in original))); Hunt v. U.S. Bank Nat'l Ass'n, No. 08-4029, 2008 WL 1925006, at *1 (W.D. Mo. Apr. 29, 2008) ("[I]t is a legitimate tactical decision to include a federal claim in a state-court petition, dismissing it only after defendants remove to federal court."); De Cordova v. Pac. Point Funding, Inc., No. 07-1067, 2007 WL 2390408, at *1, (E.D. Cal. Aug. 20, 2007) (Karlton, J.) (remanding a previously removed case after "[the] plaintiffs filed a first amended complaint omitting the federal claim"); Trujillo v. Winco Foods, LLC, No. 07-1084, 2007 WL 3054001, at *1-3 (E.D. Cal. Oct 19, 2007) (O'Neill, J.) (remanding a previously removed case after granting the plaintiff's "request to amend his complaint to delete the federal claims"); Molina v. City of Phoenix Police Dep't, No. 06-3061, 2007 WL 1063162, at *1-2 (D. Ariz. Apr. 5, 2007) (remanding after the dismissal of all federal claims despite the defendants' argument that the dismissal was "a ploy to manipulate a return to state court"); Fletcher v. Solomon, No. 06-05492, 2006 WL 3290399, at *4 (N.D. Cal. Nov. 13, 2006) ("[P]laintiffs clearly desire a state forum, as they could have filed this action as an original matter in federal court but chose not to do so. The plaintiffs are obviously more interested in their state claims than their federal claims, and the Ninth Circuit has found nothing wrong with plaintiffs promptly dropping federal claims and seeking to have a matter remanded.").

Despite defendants' protests of forum-shopping and manipulation, their insistence on having a federal court exercise jurisdiction over an action solely based on California state law is, ironically, the plainest example of manipulation. Cf. Acri v. Varian Assocs., Inc., 114 F.3d 999, 1002 (9th Cir. 1997) (en banc) (O'Scannlain, J., dissenting) (providing that "where a federal court . . . is being asked to decide claims based wholly and exclusively on state law," the federal courts "should stay out of the fray"); Nelson v. Hennepin County Med. Ctr., No. 06- 1865, 2007 WL 2695647, at *2 (D. Minn. Sept. 11, 2007) ("In general, a federal district court is not the proper forum for litigating purely state-law disputes . . . .").

Indeed, it is well-settled that "the plaintiff [is] the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). For it is "the central premise of the well-pleaded-complaint rule . . . to allow claimants to pick the law under which they seek redress, to pick the forum that they would like to resolve their claim and to have the courts . . . respect those choices." Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 479 (6th Cir. 2008) (citing Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002); Caterpillar Inc., 482 U.S. at 392).

Similarly, the court finds no legitimate basis for awarding costs and fees to defendants relating to the removal and remand proceedings in federal court. Their view that plaintiffs should "pay for the procedural ping-pong they precipitated" by bringing a federal claim in state court is misguided. (Defs. Courtesy & Wells' Mot. Reconsid. 10.) Clearly, "[i]t does not make sense to force a plaintiff to forgo his federal claims at the outset when he has a legitimate right to bring them in state court." Hunt v. U.S. Bank Nat'l Ass'n, No. 08-4029, 2008 WL 1925006, at *1 (W.D. Mo. Apr. 29, 2008) (citing Baddie v. Berkeley Farms, Inc., 64 F.3d 487, 491 (9th Cir. 1995)). The court notes, moreover, that while "a plaintiff has a right to bring both his federal claims and state claims together in state court[,] a defendant may, but does not have to, remove to federal court." Id. In other words, it takes two to play ping-pong.

IT IS THEREFORE ORDERED that defendants' motion for reconsideration be, and the same hereby is, DENIED. The March 2, 2009 hearing date is vacated.

20090115

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