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U.S. BANK NATIONAL ASSOCIATION v. BENJAMIN T. GUDOY

November 30, 2010

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE ON BEHALF OF NEW CENTURY PLAINTIFF,
v.
BENJAMIN T. GUDOY, JR.; VICTORIA F. GUDOY; AND DOES 1 TO 10, INCLUSIVE, DEFENDANTS.



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

PLAINTIFF'S MOTION TOALTERNATIVE MORTGAGE LOAN TRUST 2006-ALT2, ORDER (1) GRANTING REMAND CASE AND (2) DENYING

PLAINTIFF'S REQUEST FOR ATTORNEY FEES

This is an action for unlawful detainer. Plaintiff sued Defendants in the Superior Court for the County of San Diego, and Defendant Benjamin T. Gudoy ("Gudoy") removed the case to this Court on July 12, 2010. Doc. No. 1. Currently before the Court are Plaintiff's Motion to Remand the Case and Request for Attorney Fees and Costs, filed on October 20, 2010. 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 Complaint*fn1 alleges that Defendants Benjamin and Victoria Gudoy and Does 1-10 are individuals currently residing at or otherwise in possession of the property located at 16254 Winecreek Road, San Diego, CA 92127. Notice of Removal, Ex. A ¶ 1 (Plaintiff's Original Complaint) [hereinafter "Complaint"]. On March 2, 2010, a foreclosure sale was allegedly held, at which time 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. On March 19, 2010, Plaintiff allegedly served Defendants with a written notice requiring them to quit and deliver up possession of the property to Plaintiff. Defendants have failed to comply with the notice. Id. ¶¶ 5-6. According to Plaintiff, the reasonable value of the use and occupancy of the property is $50.00 per day. Damages have accrued to Plaintiff at that rate since March 23, 2010, and will continue to accrue at that rate so long as Defendants remain in possession of the property. See id. ¶ 7.

Plaintiff commenced this action on March 31, 2010, by filing the Complaint in the Superior Court for the County of San Diego. On July 12, 2010, Defendant Benjamin Gudoy removed the case to this Court, alleging that jurisdiction was proper under 28 U.S.C. §§ 1332 and 1441(a). Doc. No. 1. On October 21, 2010, Plaintiff filed its Motion to Remand and Request for Attorney Fees and Costs (together, "Pl.'s Combined Mot."). Doc. No. 2. Defendants have not opposed Plaintiff's motion.

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 jurisdiction must 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.

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. 1992) (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.

at 139. As the Supreme Court has stated, "[t]he appropriate test for awarding fees under ยง 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. at 140. Thus, "absent unusual circumstances, attorney's ...


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