Baldini Real Estate Inc v. Cruz et al

Northern District of California, cand-4:2015-cv-02932

ORDER by Judge Yvonne Gonzalez Rogers granting {{4}} Plaintiff's Motion to Remand; granting {{2}} Defendant's Motion for Leave to Proceed in forma pauperis; denying Plaintiff's request for attorney fees and costs. The hearing set for August 18, 2015 is VACATED. Clerk is directed to REMAND this action to the Superior Court of State of California, County of San Mateo.

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1 2 3 4 United States District Court 5 Northern District of California 6 7 BALDINI REAL ESTATE, INC., Case No.: 15-CV-2932 YGR 8 ORDER GRANTING DEFENDANT'S MOTION TO Plaintiff, PROCEED IN FORMA PAUPERIS AND 9 REMANDING ACTION TO STATE COURT vs. 10 FLORO LORENZO CRUZ, JR., ET AL., Re: Dkt. Nos. 2, 4 11 Northern District of California 12 Defendants. United States District Court 13 14 Defendant Floro Lorenzo Cruz, Jr. in a pro se capacity removed this case from the Superior 15 Court for the County of San Mateo where it was pending as an unlawful detainer action against 16 defendants. Defendant filed a notice of removal on June 24, 2015 (Notice of Removal, Dkt. No. 1 17 ("NOR")), claiming to invoke this Court's federal question jurisdiction under 28 U.S.C. section 18 1443(1). Defendant concurrently moved to proceed in forma pauperis. (Dkt. No. 2.) On July 9, 19 2015, plaintiff filed a motion to remand the case to state court. (Dkt. No. 4 ("Mtn.").) Defendant did 20 not respond in opposition and plaintiff likewise did not file any reply. 21 Presently before the Court are defendant's motion to proceed in forma pauperis and 22 plaintiff's motion to remand the case to superior court. The Court having reviewed the papers,1 and 23 for or the reasons set forth below, GRANTS defendant's application to proceed in forma pauperis, 24 GRANTS plaintiff's motion to remand, and DENIES plaintiff's request for attorney fees and costs. 25 26 27 1 28 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds that this motion is appropriate for decision without oral argument. Accordingly, the Court VACATES the hearing set for August 18, 2015. 1 I. Defendant's Motion to Proceed In Forma Pauperis 2 Defendant's application to proceed in forma pauperis adequately alleges his poverty. 3 Defendant is self-employed, his monthly expenses appear to exceed his monthly income, and he has 4 one dependent. He does not own a home and has significant outstanding debts. Therefore, 5 defendant qualifies for in forma pauperis status, and his application is GRANTED. 6 II. Plaintiff's Motion to Remand 7 Plaintiff argues that remand is appropriate on two separate and independent bases, namely 8 that: (a) the notice of removal was untimely; and (b) plaintiff has not established any basis for 9 subject matter jurisdiction. The Court agrees that remand is warranted on both accounts and 10 addresses each in turn. 11 a. Timeliness of Removal 12 The removal statute, 28 U.S.C. section 1446, governs timeliness of removal and provides in Northern District of California United States District Court 13 pertinent part: 14 The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or 15 otherwise, of a copy of the initial pleading setting forth the claim for 16 relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial 17 pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 18 19 28 U.S.C. § 1446(b). Failure to file a timely notice of removal waives a defendant's right to remove. 20 Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1256 (9th Cir. 1989). Thus, if defendant did not 21 file the notice of removal within 30 days of service of summons, the notice of removal is untimely 22 and the action should be remanded. 23 Plaintiff argues, and the record shows, that defendant filed the notice of removal more than 30 24 days after he was served with summons. Specifically, removing defendant was served through 25 substituted service on his co-tenant and co-defendant on May 20, 2015.2 (See Proof of Service of 26 Service was effected on May 20, 2015, on the removing defendant's co-defendant Armie Cruz 2 27 personally, and by substitute service on Armie Cruz on behalf of the removing defendant Floro Lorenzo Cruz, 28 Jr. (Dkt. No. 4-2.) Removing defendant has not presented any argument that he did not actually receive the complaint on this date. Moreover, regardless of his personal receipt of service, the 30-day deadline to remove the matter runs from this date as the day the first proper defendant (Armie Cruz) was served. United 2 1 Summons, Exhibit D to Declaration of Jonathan Herschel, Dkt. No. 4-2.) To be timely under 28 2 U.S.C. section 1446(b), therefore, defendant's notice of removal would have to have been filed in 3 federal court no later than June 19, 2015. However, defendant did not file the notice of removal3 until 4 five days later on June 24, 2015. Because defendant did not timely file the notice of removal, he 5 waived his right to remove, and the action is due to be remanded on this basis alone. 6 b. Subject Matter Jurisdiction 7 Remand is also appropriate because the Court lacks subject matter jurisdiction over this 8 action. A defendant in state court may remove an action to federal court so long as the action could 9 have originally asserted subject matter jurisdiction. 28 U.S.C. § 1441(a). The removing defendant 10 has the burden of proving the basis for the federal court's jurisdiction. Nishimoto v. Federaman- 11 Bachrach & Assocs., 903 F.2d 709, 712 (9th Cir. 1990). Removal statutes are strictly construed 12 against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941); Takeda v. Northern District of California United States District Court 13 Northwestern Nat'l. Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985). 14 In this case, the defendant argues that the Court has subject matter jurisdiction based on a 15 federal question. The "well-pleaded complaint" rule requires a federal question to be presented on 16 the face of a complaint at the time of removal for federal question jurisdiction to exist. Duncan v. 17 Stuetzel, 76 F.3d 1480, 1485 (9th Cir. 1996). An anticipated federal defense is not sufficient to 18 confer jurisdiction. Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (under the "well-pleaded 19 complaint" rule, a case may not be removed on the basis of a federal defense); see also Wayne v. 20 DHL Worldwide Express, 294 F.3d. 1179, 1183 (9th Cir. 2002) (existence of a defense based on 21 federal law is insufficient to support jurisdiction). Here, however, the complaint asserts only one 22 state law claim for unlawful detainer, and does not present any federal question. Defendant also does 23 24 Computer Sys. Inc. v. AT&T Corp., 298 F.3d 756, 762 (9th Cir. 2002) (recognizing that a majority of courts to 25 address the issue have adopted the "first-served" rule). 26 3 The Court notes that the notice of removal does not specify whether co-defendant Armie Cruz joins in the petition for removal, as is required in the normal course. See Wisconsin v. Dept. of Corrections v. 27 Schacht, 524 U.S. 381, 393 (1998) (Kennedy, J., concurring) ("Removal requires the consent of all the 28 defendants."); Ely Valley Mines, Inc. v. Hartford, 644 F.2d 1310, 1314 (9th Cir. 1981) ("As a general rule, all defendants who may properly join in the removal petition must join.") 3 1 not appear to raise a federal defense, and he therefore cites 28 U.S.C. section 1443(1) as a basis for 2 removal.4 (See NOR.) 3 28 U.S.C. section 1443(1) permits the removal of certain "civil rights cases." A petition for 4 removal under section 1443(1) must satisfy a two-part test: (1) "the petitioner must assert, as a 5 defense to the [action], rights that are given to them by explicit statutory enactment protecting equal 6 racial civil rights;" and (2) the "petitioners must assert that the state courts will not enforce that 7 right," with "reference to a state statute or constitutional provision that purports to command the state 8 courts to ignore the federal rights." Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006). 9 Defendant argues that he will raise a defense to the unlawful detainer action pursuant to his 10 equal rights based not on race but on other constitutionally guaranteed rights he claims are protected 11 by 42 U.S.C. section 1981. (See NOR.) Supreme Court and Ninth Circuit precedent undoubtedly 12 limit removal under section 1443(1) to only cases where it is predicated upon racial discrimination. Northern District of California United States District Court 13 Georgia v. Rachel, 384 U.S. 780, 788-92 (1966) ("we conclude that the phrase 'any law providing 14 for equal civil rights' must be construed to mean any law providing for specific civil rights stated in 15 terms of racial equality."); Patel, 446 F.3d at 998-99, supra. Defendant acknowledges this authority, 16 but implores the Court to ignore binding precedent and hold otherwise. The Court declines. 17 Defendant has therefore failed to establish that this Court has subject matter jurisdiction under 28 18 U.S.C. section 1443(1) or otherwise. 19 Accordingly, the Court is without subject matter jurisdiction, and plaintiff's motion to 20 remand is GRANTED. 21 III. Plaintiff's Request for Attorney Fees 22 Plaintiff also asks this Court to award reasonable attorney fees and costs incurred in 23 connection with this removal. The removal statute, 28 U.S.C. section 1447(c), permits an award on 24 remand, but such an award is up to the sound discretion of the district court, and no strong 25 presumption exists in favor awarding fees and costs. Martin v. Franklin Capital Corp., et al., 546 26 U.S. 132 (2005). Although plaintiff did incur attorney fees as a result of this improper removal, the 27 4 28 Defendant also cites 28 U.S.C. sections 1350 and 1441 as bases for removal, but then presents no argument in support thereof. (See NOR.) He therefore does not meet his burden to show removal was appropriate under these alternative theories. 4 1 removing defendant is pro se and did not oppose plaintiff's motion for remand. A pro se defendant 2 is "entitled to more leeway in his attempt to comply with the removal statute." Gann Properties, LP 3 v. Coates, 2013 WL 5754372 at *2 (N.D. Cal. Oct. 21, 2013) (quoting HSBC Bank USA, N.A. v. 4 Bryant, 2009 WL 3787195, at *5 (S.D. Cal. Nov. 10, 2009)). The Court's conclusion that 5 defendant's removal lacked merit and was procedurally deficient does not require a finding of bad 6 faith or that defendant did not believe he had a reasonable basis to remove. See Gann Properties, 7 2013 WL 5754372 at *2 (a fee award was inappropriate where a tenant in an unlawful detainer 8 action filed an ultimately unsuccessful notice of removal on the eve of state court trial). The Court is 9 not persuaded that the contours of federal subject matter jurisdiction were obvious to this pro se 10 defendant. Under these circumstances, the Court finds that an award of attorney fees and costs is not 11 appropriate. Further, an award is not in the interest of a "just, speedy, and inexpensive 12 determination" of the action. Fed. R. Civ. P. 1. Plaintiff's fee request is DENIED. Northern District of California United States District Court 13 This Order terminates this case. The Clerk of the Court is directed to REMAND this action to 14 the Superior Court of the State of California, County of San Mateo. 15 IT IS SO ORDERED. 16 Dated August 12, 2015. 17 _______________________________________ 18 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 19 20 21 22 23 24 25 26 27 28 5