United States District Court, W.D. Washington
ORDER OF REMAND
S. LASNIK UNITED STATES DISTRICT JUDGE
PMT NPL Financing 2015-1 filed this unlawful detainer action
in state court. On April 6, 2017, defendant Thomas C. Lee
removed the case to federal court pursuant to 28 U.S.C.
§§ 1441(a)-1446, with particular reference to 28
U.S.C. § 1443(1). Mr. Lee alleges that federal
jurisdiction arises from his Fourteenth Amendment defense and
diversity of citizenship. On June 30, 2017, The Honorable
Ricardo S. Martinez ordered this same litigation remanded to
the Superior Court of Washington State in and for the County
of King on the ground that the court lacked subject matter
jurisdiction because defendant cannot create a federal
question by asserting a federal defense and because defendant
failed to establish the $75, 000 threshold for diversity
jurisdiction. The court found that the defendant did not have
an objectively reasonable basis for removal and invited
plaintiff to file a supplemental motion for attorneys'
fees. Plaintiff did not file such a motion. See PMT NPL
Financing 2015-1 v. Lee, C17-535RSM (W.D. Wash. June 30,
2017). On September 13, 2017, defendant once again removed
the case to federal court, again alleging that the Court has
jurisdiction based on the Fourteenth Amendment and diversity
of citizenship, using a functionally identical Notice of
Removal (Dkt. #1).
removal statute, 28 U.S.C. § 1441, is construed
restrictively: any doubts regarding the removability of a
case will be resolved in favor of remanding the matter to
state court. See, e.g., Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Durham
v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir.
2006); Hawaii ex rel. Louie v. HSBC Bank Nev., N.A.,
761 F.3d 1027, 1034 (9th Cir. 2014). When a case is filed in
state court, removal is typically proper if the case could
have originally been brought in federal court, i.e., if the
complaint raises a federal question or there is diversity of
citizenship and the amount in controversy exceeds $75, 000.
28 U.S.C. §§ 1331, 1332(a), 1441; Wash. v.
Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011).
Certain civil rights cases may also be removed. 28 U.S.C.
§ 1443. The burden of establishing federal jurisdiction
is on the removing party. Hunter v. Philip Morris
USA, 582 F.3d 1039, 1042 (9th Cir. 2009). It is
therefore defendant's burden to show there is a federal
question, that the requirements for diversity jurisdiction
are met, or that this removal meets the narrow standard that
applies to civil rights cases.
question jurisdiction exists only when the plaintiff's
well-pleaded complaint presents a federal question on its
face. A “defense based upon federal law is insufficient
to support jurisdiction.” Wayne v. DHL Worldwide
Express, 294 F.3d 1179, 1183 (9th Cir. 2002) (citing
Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 10-12 (1983)); accord Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987). As the
plaintiff's complaint rests entirely on state law, there
is no federal question jurisdiction. The defendant cannot
create federal question jurisdiction by the virtue of his own
federal constitutional defenses.
order to establish diversity jurisdiction, the defendant must
show that the plaintiff claims damages greater than the
jurisdictional requirement. This is satisfied if the
plaintiff claims a sum greater than $75, 000, or, if the
plaintiff's damages sought are unclear, the defendant
must provide the facts to prove the jurisdictional amount.
Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir.
1992). In its complaint, plaintiff does not seek damages but
rather a writ of restitution to restore possession of the
premises and a decree “that any personal property left
on the subject property by the Defendant . . . be deemed
abandoned and valueless and authorizing the Plaintiff to take
possession of such property or discard or destroy said
property, as the Plaintiff shall see fit.” Defendant
provides no additional facts to prove the jurisdictional
amount. There is no adequate basis for the Court to find that
the jurisdictional amount is satisfied.
defendant also cites 28 U.S.C. § 1443(1) as a basis for
removal. As a threshold matter, this statute requires that
“the civil right allegedly denied must arise under a
federal law ‘providing for specific civil rights stated
in terms of racial equality.'” California v.
Dawodu, 122 Fed.Appx. 884, 885 (9th Cir. 2004) (citing
Johnson v. Mississippi, 421 U.S. 213, 219-20 (1975);
Georgia v. Rachel, 384 U.S. 780 (1966)); accord
City of Greenwood v. Peacock, 384 U.S. 808 (1966).
Defendant's Equal Protection and Due Process allegations
do not satisfy this threshold because the clauses are
“phrased in terms of general application available to
all persons or citizens, rather than in the specific language
of racial equality that §1443 demands.”
Georgia v. Rachel, 384 U.S. 780, 792 (1966);
accord California v. Dawodu, 122 Fed.Appx. 884, 885
(9th Cir. 2004). Removal under 28 U.S.C. § 1443(1) is
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).
“Absent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005). At the time of the
first order to remand, Judge Martinez found that the
defendant did not have an objectively reasonable basis for
removal as there was no case law supporting removal of a
state unlawful detainer action or removal of an action based
on federal law defenses. Defendant removes now on the same
grounds as before, and no new case law supporting such
removal has arisen in the months since the first removal and
remand. Defendant therefore lacks an objectively reasonable
basis for removal, and costs and fees to plaintiff incurred
as a result of this second removal are appropriate.
addition, bad faith litigation misconduct is sanctionable
under the Court's inherent powers, Local Civil Rule
11(c), and Fed.R.Civ.P. 11. See Fink v. Gomez, 239
F.3d 989, 991-92 (9th Cir. 2001). The Court has the inherent
authority “to sanction a party . . . if it acts in
‘willful disobedience of a court order . . . or when
the losing party has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons, ' as well as for
‘willful[ ] abuse [of the] judicial
processes.'” Gomez v. Vernon, 255 F.3d
1118, 1133-34 (9th Cir. 2001) (citing Roadway Express,
Inc. v. Piper, 447 U.S. 752, 766 (1980)), cert.
denied, 534 U.S. 1066, (2001). The Court has authority
under Local Civil Rule 11(c) to sanction a party who
“presents to the court unnecessary motions or
unwarranted opposition . . ., or who otherwise so multiplies
or obstructs the proceedings in a case.” LCR 11(c);
Cf. 28 U.S.C. § 1927. Rule 11 also provides a
basis for sanctions where “a filing is frivolous,
legally unreasonable, or without factual foundation, or is
brought for an improper purpose.” Siddiqui v. AG
Commc'n Sys. Corp., 233 Fed.Appx. 610, 613 (9th Cir.
2007) (citing Estate of Blue v. County of Los
Angeles, 120 F.3d 982, 985 (9th Cir. 1997)). When faced
with litigation abuses by a pro se party, a court
“cannot . . . decline to impose a sanction, where a
violation has arguably occurred, simply because plaintiff is
proceeding pro se.” Warren v.
Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994).
sanctions that may be imposed under any or all of the above
authorities include monetary sanctions and/or the imposition
of a standing bar order that limits defendant's abilities
to remove or file actions pro se. There being no
objectively reasonable basis for the removal of an unlawful
detainer action, much less a second removal in the same case,
the Court finds and ORDERS that:
There is no basis for the exercise of federal jurisdiction.
This matter is hereby REMANDED to the Superior Court of
Washington State in and for the County of King. The Clerk of
Court is directed to immediately transfer this case to state
court, which shall have immediate and full jurisdiction over
this matter notwithstanding the on-going sanction proceedings
in this Court.
Plaintiff is entitled to an award of fees and costs
associated with bringing this second Motion for Remand (Dkt.
#10). No later than ten (10) days from the date of this
Order, plaintiff may file an affidavit stating the reasonable
fees and costs incurred.
Within thirty (30) days from the date of this Order,
defendant Thomas C. Lee shall SHOW CAUSE as to why this Court
should not impose sanctions, including the imposition of a
pre-filing review procedure on any future attempts to remove
this action from state court.