IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 1, 2010
DEUTSCHE BANK NATIONAL TRUST COMPANY, PLAINTIFF,
SOLIH JORA; DANIEL JORA; HADECHA JORA, DEFENDANTS.
ORDER AND FINDINGS AND RECOMMENDATIONS
On April 12, 2010, defendant Solih Jora, proceeding pro se, filed a notice of removal of this unlawful detainer action from the Sacramento County Superior Court.*fn1 Plaintiff now moves to remand the action to state court and seeks an award of attorney's fees and costs based on defendant's improper removal. Dckt. No. 14. Plaintiff noticed the motion to be heard on October 6, 2010. Id.
Court records reflect that defendant Solih Jora has not filed either an opposition or a statement of non-opposition to plaintiff's motion. Local Rule 230(c) provides that opposition to the granting of a motion, or a statement of non-opposition thereto, must be served upon the moving party, and filed with this court, no later than fourteen days preceding the noticed hearing date or, in this instance, by September 22, 2010. Local Rule 230(c) further provides that "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party."*fn2 On September 27, 2010, defendant Daniel Jora filed an untimely opposition to plaintiff's motion to remand. Dckt. No. 15. Although untimely, the opposition was considered by the undersigned.
Motion to Remand
Plaintiff moves to remand this action to state court, arguing that there is no federal question jurisdiction since plaintiff's complaint alleges only a state law claim for unlawful detainer and does not allege any federal claims, and that there is no diversity jurisdiction since the amount in controversy is less than $75,000. Dckt. No. 14. Plaintiff also contends that the action should be remanded since the notice of removal was untimely and does not contain a "short and plain statement of the grounds for removal," as required by 28 U.S.C. § 1446(a).
"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Here, defendant's notice of removal states that this court has federal question jurisdiction "in light of Protecting Tenants At Foreclosure Act 2009 among other issues of law regarding false documents, denial of due process, circumvention of July 18, 2008 closure of federal bank IndyMac bank, F.S.B. by Office of Thrift Supervision, and the March 19, 2009 Federal Deposit Insurance Corporation conservatorship and sale of former IndyMac Federal Bank, FSB to OneWest Bank." Dckt. No. 1 at 2. However, a review of plaintiff's complaint reveals that plaintiff does not allege any federal claims; instead, plaintiff alleges only unlawful detainer under state law. Id. at 12 (Compl.). Although defendant Daniel Jora argues in his opposition that the Protecting Tenants At Foreclosure Act of 2009 provides federal question jurisdiction, the presence or absence of federal question jurisdiction "is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of plaintiff's properly pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). This is the case where the complaint "establishes either that  federal law creates the cause of action or that  the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leashold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)). Here, plaintiff's one cause of action is for unlawful detainer under state law.*fn3 Therefore, no federal question is presented on the face of the complaint.*fn4
Nor does the notice of removal establish that this court has diversity jurisdiction. The notice of removal states that defendant Solih Jora is a citizen of California and that plaintiff "is a foreign corporation not registered to do business in California and a foreign agent of a principal based in the Republic of Germany." Id. at 2. The notice of removal further states that the amount in controversy "is yet to be determined." Id. However, diversity jurisdiction requires complete diversity of citizenship among the parties, as well as a minimum amount in controversy of over $75,000. See 28 U.S.C. § 1332. Here, defendant's notice of removal fails to establish complete diversity since it does not establish the citizenship of plaintiff or the other defendants. The notice of removal also does not establish that the amount in controversy in this action exceeds $75,000. The notice of removal states only that the amount in controversy "is yet to be determined," and the complaint attached to the notice of removal specifically states that the "Amount demanded does not exceed $10,000." Dckt. No. 1, at 12. "Since 'it [was] not facially evident from the complaint that more than $75,000 [was] in controversy,' [defendant] should have 'prove[n], by a preponderance of the evidence, that the amount in controversy [met] the jurisdictional threshold.'" Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (quoting Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1909 (9th Cir.2003)). Here, not only did defendant fail to submit proof that the $75,000 threshold is met, but he failed to even assert that it is. Accordingly, defendant has failed to establish that this court has diversity jurisdiction over the action.*fn5
Because defendant has not adequately established that plaintiff's complaint alleges a federal claim or that this court has diversity jurisdiction, the undersigned will recommend that this action be remanded to state court.*fn6 See 28 U.S.C. § 1447(c).
Request for Attorney Fees and Costs
Plaintiff also seeks an award of reasonable attorneys' fees and costs in the amount of $2,100.00, pursuant to 28 U.S.C. § 1447(c), based on defendant's improper removal. Dckt. No. 14. Plaintiff contends that costs and fees should be awarded because "[c]learly established state and federal law unequivocally prohibit removal under the circumstances of this case," and because the "improper request for removal . . . frustrated the summary nature of the unlawful detainer action against them and has forced the prolonged expenditure of resources in both state and federal court." Id. Plaintiff further contends that "Defendants filed the removal to this Court for one purpose: harass Plaintiff by causing further litigation expenses, cause unnecessary delay and otherwise seek to impede Plaintiff's rights to recover possession of real property, which it lawfully owns." Id.
Section 1447(c) provides that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." An award of fees under section 1447(c) is discretionary and there is no presumption in favor of or against granting fees and costs. See Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005). Here, although defendant's removal was improper, defendant is proceeding pro se in this action, and there is no evidence that he filed the notice of removal in bad faith or to "harass" plaintiff, as plaintiff suggests. Therefore, the undersigned will recommend that plaintiff's request for an award of attorneys' fees and costs be denied.
Accordingly, IT IS HEREBY ORDERED that:
1. The hearing date on plaintiff's motion to remand, Dckt. No. 14, is vacated; and
2. The status (pretrial scheduling) conference currently set for hearing on November 3, 2010, is vacated.*fn7
Further, IT IS FURTHER RECOMMENDED that:
1. Plaintiff's request for attorney fees and costs, Dckt. No. 14, be denied;
2. Plaintiff's motion to remand Dckt. No. 14, be granted; and
3. The above-captioned case be REMANDED to the Superior Court of the State of California in and for the County of Sacramento.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).