Hughes v. Medina

• Court: District Court, D. Arizona
• Decided: June 17, 2022
• Docket: 4:22-cv-00202
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Carter Hughes, No. CV-22-00202-TUC-JGZ

10 Plaintiff, ORDER

11 v.

12 Jesse Medina, et al.,

13 Defendants. 14 15 On October 8, 2021, Plaintiff Carter Hughes filed a complaint in Pima County 16 Superior Court alleging multiple causes of action arising from the alleged sale of an 17 Instagram account. (Doc. 1-5.) The Complaint alleges that the account was originally 18 owned by Defendant Jesse Medina, who was served with the initial pleading on October 19 27, 2021. Without having submitted an answer, Defendant filed a Notice of Removal in 20 the United States District Court for the Northern District of California. (Doc. 6-1.) There, 21 the court found the removal to be “frivolous” because 28 U.S.C. § 1441(a) only permits 22 removal to the district court “where such action is pending.” The action was remanded on 23 February 9, 2022. (Doc. 6-2.) Defendant then filed a second Notice of Removal in this 24 Court on April 15, 2022. (Doc. 1.). Pending before the court is Plaintiff’s Motion to 25 Remand the action back to Pima County Superior Court. (Doc. 6.) 26 I. Discussion 27 The Defendant has the burden of overcoming the presumption against removal. 28 Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). Further, the 1 Defendant must show that he has complied with the procedural requirements of removal. 2 Schwartz v. FHP Int’l Corp., 947 F.Supp. 1354, 1360 (D. Ariz. 1996). Remand is the 3 proper remedy when there is any defect in the removal procedure. See 28 U.S.C. § 1447. 4 For the following reasons, the Court will grant Plaintiff’s motion, remand the case 5 to state court, and award Plaintiff his attorney’s fees and costs. 6 A. Timeliness of Removal 7 Defendant’s notice of removal was untimely filed. “The notice of removal of a 8 civil action or proceeding shall be filed within 30 days after the receipt by the defendant, 9 through service or otherwise, of a copy of the initial pleading setting forth the claim for 10 relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b) (emphasis 11 added). 12 Here, the initial pleading was served on Defendant on October 27, 2021. 13 Defendant was required to file his notice of removal by November 26, 2021. Notice of 14 removal to this Court was not filed until April 15, 2022, 170 days after the initial 15 pleading. Defendant has acknowledged his lack of punctuality in filing the notice but 16 offered no legal authority to excuse the untimeliness. 17 Defendant also asserts that the prohibition on second removals pertains only to 18 removal “on the same ground,” and cites authority for the proposition that “[a] defendant 19 who fails in an attempt to remove on the initial pleadings can file a second removal 20 petition when subsequent pleadings or events reveal a new and different ground for 21 removal.” (Doc. 8 at 4 (emphasis added.) But, as Defendant later states, “none of the 22 facially apparent facts alleged in the complaint have changed.” (Id. at 5.) And Defendant 23 sought removal in both instances in reliance on the same complaint and grounds – 24 diversity jurisdiction. Thus, the case shall be remanded to Pima County Superior Court. 25 B. Attorney’s Fees 26 The Court will grant Plaintiff’s motion for attorney’s fees because Defendant 27 lacked an objectively reasonable basis for removal. “An order remanding the case may 28 require payment of just costs and any actual expenses, including attorney fees, incurred as aresult of the removal.” 28 U.S.C. § 1447(c). As a collateral matter, this Court retains 2|| jurisdiction to award attorney’s fees after being divested of jurisdiction on the merits. 3|| Moore v. Permanente Med. Grp., 981 F.2d 443, 445 (9th Cir. 1992). An award of 4|| attorney’s fees is proper when the removing party lacks an objectively reasonable basis 5|| for seeking removal. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). 6|| Further, the District Court has broad discretion in awarding attorney’s fees upon remand. 7\| Moore, 981 F.2d at 447. An award of attorney’s fees does not require a finding of bad 8 || faith. Jd. at 446. 9 Here, Defendant’s removal was objectively unreasonable. The statute clearly 10 || limits the time for removing a case to federal court. Defendant has acknowledged that his 11 || notice was untimely filed. He provides no relevant authority to excuse the untimeliness 12 || and his request that a procedural error not stand in the way of removal suggests that he is 13 || aware of the legal deficiency. Because Defendant has failed to present an objectively reasonable basis for the second removal, the Court will award Plaintiff his fees and costs. 15 II. Conclusion 16 For the foregoing reasons, 17 IT IS HEREBY ORDERED granting Plaintiff's Motion to Remand. (Doc. 6.) The 18 || Clerk of the Court is directed to remand this action to Pima County Superior Court. 19 IT IS FURTHER ORDERED Plaintiff's Motion for Attorney’s Fees and Costs is || granted. (Doc. 6.) 21 IT IS FURTHER ORDERED Plaintiff shall submit a fee request with appropriate 22 || documentation within fourteen (14) days of the date of this order. 23 Dated this 17th day of June, 2022. 24 25 □ 26 pote Spe Honoral le Jennife Me Zfpps United States District Judge 28

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