Christine Owen v. Adam Stokes

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 15, 2021
• Docket: 20-15129
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRISTINE M. OWEN, No. 20-15129

Plaintiff-Appellee, D.C. No. 2:18-cv-01581-GMN-DJA v. District of Nevada, Las Vegas ADAM STOKES; et al., MEMORANDUM* Defendants-Appellants,

and

RAMZY P. LADAH,

Defendant.

On Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Submitted March 11, 2021** Las Vegas, Nevada

Before: NGUYEN and BENNETT, Circuit Judges, and HARPOOL,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. Christine Owen and Adam Stokes own Half Price Lawyers LLC (“HPL”).

Owen filed fifteen state law claims against Stokes, HPL, and others (collectively

“Stokes”) in state court, alleging that she had not received her share of HPL’s

profits under various contracts. Stokes removed the case, but the district court

granted Owen’s motion to remand and her motion for attorney’s fees based on

improper removal under 28 U.S.C. § 1447(c). Stokes appeals. We dismiss in part

and affirm in part.

1. Owen’s claims were subject to non-discretionary remand under 28

U.S.C. § 1447(c), and that remand order is not reviewable. 28 U.S.C § 1447(d)

(“An order remanding a case to the State court from which it was removed is not

reviewable on appeal or otherwise . . . .”); see Stevens v. Brink’s Home Sec., Inc.,

378 F.3d 944, 948–49 (9th Cir. 2004) (explaining that only non-jurisdictional,

discretionary orders of remand are reviewable on appeal).

2. We review de novo whether the district court applied the correct legal

standard for an award of attorney’s fees, Moore v. Permanente Med. Grp., Inc.,

981 F.2d 443, 445–46 (9th Cir. 1992), and review the award of fees and costs for

abuse of discretion, Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th

Cir. 2008). “The court recognized that its decision turned on the reasonableness of

the attempted removal, which is the correct legal standard.” Id.; see Martin v.

Franklin Cap. Corp., 546 U.S. 132, 141 (2005) (“[C]ourts may award attorney’s

2 fees under § 1447(c) only where the removing party lacked an objectively

reasonable basis for seeking removal.”).

Stokes’s attempts to manufacture federal question jurisdiction were baseless

and premised on misrepresentation. First, Stokes argues that because “Half Priced

Lawyers” is a trademark, and because Owen and Stokes own securities in HPL,

any claims Owen may have necessarily arise under federal trademark and

securities law. But “the mere existence of [a] protected trade name . . . does not

provide a basis for federal jurisdiction.” Postal Instant Press v. Clark, 741 F.2d

256, 257 (9th Cir. 1984). Stokes has provided no authority suggesting that the rule

is any different in the securities context. Second, Stokes argues that Owen could

raise arguments based on federal law, but “[j]urisdiction may not be sustained on a

theory that the plaintiff has not advanced.” Merrell Dow Pharms. Inc. v.

Thompson, 478 U.S. 804, 809 n.6 (1986). Finally, Stokes’s arguments that the

parties’ Operating and Licensing Agreements create a federal question fail,

because neither document binds the parties to only federal law, and even if they

did, “[t]he parties have no power to confer jurisdiction on the district court by

agreement or consent.” Morongo Band of Mission Indians v. Cal. State Bd. of

Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). Moreover, Stokes’s arguments

to the district court and to this Court concerning the Agreements contain

misrepresentations. The district court therefore did not abuse its discretion in

3 determining that there was no objectively reasonable basis for removal.

3. Stokes argues that the district court’s fee award in the amount of

$8,520.00 was excessive. To the contrary, the district court properly applied a

reasonable hourly rate to the hours Owen’s counsel spent on federal litigation,

except those hours spent opposing Stokes’s motion to compel arbitration because

that motion would have been filed whether the case was in state or federal court.

Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996) (describing the

“lodestar” method of determining fees). The amount of the award was not an

abuse of discretion.

DISMISSED IN PART AND AFFIRMED IN PART.