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HSBC Bank USA, N.A. v. Bryant

November 10, 2009

HSBC BANK USA, N.A., AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-HE5, ASSET BACK PASS-THROUGH CERTIFICATES SUCCESSOR LENDER BY MESNE AND TRANSFERS FROM MORTGAGE ELECTRONIC REG., PLAINTIFF,
v.
DAVID BRYANT, SR.; AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) GRANTING MOTION TO (2) DENYING MOTION FOR REMAND, ATTORNEY FEES AND COSTS. [Doc. No. 2]

This is an action for unlawful detainer. Plaintiff sued Defendants in the Superior Court for the County of San Diego, and Defendant David Bryant, Sr. ("Bryant") removed the case to this Court on July 31, 2009. [Doc. No. 1]. Currently before the Court are Plaintiff's Motion to Remand the case and Motion for Attorney Fees and Costs, filed on August 31, 2009. [Doc. No. 2]. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS Plaintiff's Motion to Remand, but DENIES Plaintiff's Motion for Attorney Fees and Costs.

BACKGROUND

Plaintiff's Verified Complaint alleges that Defendant Bryant and Does 1-10 are individuals currently residing at or otherwise in possession of the property located at 703 40th Street, San Diego, CA 92102 ("Property"). (Verified Complaint, attached to Notice of Removal ¶ 2 [hereinafter Verified Complaint].) On April 27, 2009, a foreclosure sale was allegedly held and Plaintiff took title to the Property and received an executed Trustee's Deed upon Sale, later recorded in the Official Records in the office of the County Recorder of San Diego County. (Id. ¶ 5.) After Plaintiff acquired title to the Property, Plaintiff allegedly served on Defendants a written notice requiring them to quit and deliver up possession of the Property to Plaintiff, which to date has not been complied with. (Id. ¶¶ 6-8.) According to Plaintiff, "[t]he reasonable value of the use and occupancy of the Property is $50.00 per day, and damages have accrued to Plaintiff at that rate since April 27, 2009, and will continue to accrue at that rate so long as Defendants remain in possession of the Property." (Id. ¶ 9.)

Plaintiff commenced this action on July 20, 2009, by filing the Verified Complaint in the Superior Court for the County of San Diego. On July 31, 2009, Defendant Bryant removed the case to this Court, alleging that jurisdiction was proper under both 28 U.S.C. § 1331 and 28 U.S.C. § 1332. (Notice of Removal ¶¶ 5, 7.) In his Notice of Removal, Bryant also included three motions*fn1 and asserted six counterclaims against Plaintiff, including three counterclaims based on various federal statutes.*fn2 (Notice of Removal ¶¶ 11-19, 84-125.) On August 31, 2009, Plaintiff filed its Motion to Remand and Motion for Attorney Fees and Costs (together, "Pl. Combined Motion"). [Doc. No. 2].

LEGAL STANDARD

I. Motion to Remand

A civil action that is filed in state court may be removed if the federal district court has original jurisdiction based on either "diversity of citizenship" or a "federal question." See 28 U.S.C. § 1441(a); see also id. §§ 1331, 1332. Once the case is removed, "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdictionmust be made within 30 days after the filing of the notice of removal." Id. § 1447(c). However, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Id.

When this Court's jurisdiction is based on a "federal question," the question must be disclosed on the face of the complaint. Sparta Surgical Corp. v. Nat'l Ass'n of Securities Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998) (citation omitted). Under the longstanding well-plead complaint rule, this means that jurisdiction is proper "'only when the plaintiff's statement of his own cause of action shows that it is based upon federal law.'" Vaden v. Discover Bank, 129 S.Ct. 1262, 1272 (2009) (citation omitted). Notably, federal jurisdiction cannot be predicated on "an actual or anticipated defense," nor can it rest upon "an actual or anticipated counterclaim." Id. (citations omitted).

Jurisdiction founded on "diversity of citizenship" requires that there be both complete diversity of the parties and an amount in controversy exceeding $75,000. See 28 U.S.C. § 1332(a). A natural person is a "citizen" for diversity jurisdiction purposes in the state where she is domiciled. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). "A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return." Id. (citation omitted).

The removal statute is strictly construed, and the court must reject federal jurisdiction if there is any doubt as to whether the removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.) (citations omitted). This "strong presumption" against removal jurisdiction means that the defendant bears the burden of proving the propriety of removal. Id. (citations omitted).

II. Motion for Attorney Fees and Costs

"An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). However, there is no automatic entitlement to an award of attorney fees and costs. Martin v. Franklin Capital Corp., 546 U.S. 132, 136-37 (2005). Rather, the language of Section 1447(c) makes such an award discretionary. Id. at 139. As the Supreme Court has stated, "[t]he appropriate test for awarding fees under § 1447(c) should recognize the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress' basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied." Id. at140.

Thus, "absent unusual circumstances, attorney's fees should not be awarded when the removing party has an objectively reasonable ...


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