United States District Court, W.D. Washington, Tacoma
ORDER GRANTING PLAINTIFF'S MOTION TO
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs Robert Lussier
and Linda Lussier's (“Plaintiffs”) motion to
remand. Dkt. 5. The Court has considered the pleadings filed
in support of and in opposition to the motion and the
remainder of the file and hereby grants the motion for the
reasons stated herein.
27, 2019, Plaintiffs filed a complaint against Defendants
GBC, Inc. d/b/a Herfy's Burgers and Teriyaki, Young Sook
Choi, Jae Eui Hong, and other occupants
(“Defendants”) in the Pierce County Superior
Court for the State of Washington. Dkt. 1-1. Plaintiffs
alleged unlawful detainer of a commercial property, seeking
restitution of the premises, forfeiture and termination of
Defendants' tenancy, and damages. Id. On July
23, 2019, Defendants removed to this Court. Dkt. 1. On August
6, 2019, Plaintiff filed the instant motion to remand. Dkt.
5. Defendants did not respond, which the Court continues as
an admission that the motion has merit. Local Rules W.D.
Wash. LCR 7(b)(2).
own a commercial property at 15619 Pacific Avenue South,
Tacoma, WA 98445. Dkt. 5 at 2. Plaintiffs leased the property
to Defendants beginning in March 2018. Id.
Plaintiffs allege that prior to the filing of this suit,
Defendants failed to pay rent, late fees, and interest, with
failure to pay beginning April 1, 2018. Id.
removed citing 28 U.S.C. §§ 1331 and 1332,
violation of 50 U.S.C. § 3932 and 42 U.S.C. § 1983,
and 28 U.S.C. §§ 1441 and 1446. Dkt. 1 at 1. In
their notice of removal, Defendants argue Plaintiffs did not
actually purchase the property at issue and so cannot enforce
a lease, targeted Defendants based on race, and tortuously
interfered with Defendants' business expectations.
Id. at 2.
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded. 28 U.S.C. § 1447(c). District courts have
federal question jurisdiction over all claims “arising
under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. “The presence or
absence of federal question jurisdiction is governed by the
‘well-pleaded complaint' rule, which provides that
federal question jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” California v. United
States, 215 F.3d 1005, 1014 (9th Cir. 2000). “In
determining the existence of removal jurisdiction, based upon
a federal question, the court must look to the complaint as
of the time the removal petition was filed.”
O'Halloran v. Univ. of Washington, 856 F.2d
1375, 1379 (9th Cir. 1988).
Defendants have not shown 28 U.S.C. § 1331 provides a
basis for jurisdiction, because no federal question appears
on the face of Plaintiff's complaint.
California, 215 F.3d at 1014. Defendants also cite
42 U.S.C. § 1983 as a basis for jurisdiction but have
not alleged a counterclaim or other claim based on that
statute. Even if Defendants had done so, “a federal
counterclaim, even when compulsory, does not establish
‘arising under' jurisdiction.” Vaden v.
Discover Bank, 556 U.S. 49, 60 (2009). Second,
Defendants have not shown that 28 U.S.C. § 1332 provides
a basis for jurisdiction because Defendants have not shown
they are citizens of one state and defendants are citizens of
50 U.S.C. § 3932 provides that the Court may stay any
action against a currently serving military member if the
member's service duties materially interfere with the
member's ability to appear and defend. Defendants fail to
allege any facts that would support a stay of this matter and
fail to show that this statute supports removal of the action
to federal court. Fourth, 28 U.S.C. § 1442 provides for
removal when federal officers or agencies are sued or
prosecuted, but Defendants have provided no facts to show
those circumstances are present in this case.
28 U.S.C. § 1441 governs removal of civil actions, but
as discussed, none of Defendants' potentially more
specific bases for federal jurisdiction are sufficient, so
this general citation also does not provide a basis for
jurisdiction. Finding no basis for federal jurisdiction, the
Court will grant Plaintiff's motion to remand.
addition to remand, Plaintiffs ask the Court to issue an
order prohibiting Defendants from litigating any issue
related to the possession of the property in any federal
court. Plaintiffs provide no basis for the Court's
authority to issue such an order and the Court declines to do
also ask the Court to award them attorney fees and costs
pursuant to 28 U.S.C. § 1447. Under 28 USC §
1447(c), “[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.”
The Supreme Court has said that “absent unusual
circumstances, attorney's fees should not be awarded when
the removing ...