1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 JAMES RUTHERFORD, Case No.: 19cv1349 JM (MDD)
8 Plaintiff, ORDER (1) GRANTING 9 v. PLAINTIFF’S MOTION TO REMAND ACTION TO THE 10 LA JOLLA RIVIERA APARTMENT SUPERIOR COURT OF HOUSE LLC, 11 CALIFORNIA FOR THE COUNTY Defendant. OF SAN DIEGO AND (2) DENYING 12 ATTORNEY’S FEES
14 Plaintiff James Rutherford (“Plaintiff”) moves to remand this action to the Superior 15 Court of California for the County of San Diego. (Doc. No. 6.) Defendant La Jolla Riviera 16 Apartment House LLC (“Defendant”) opposes the motion. (Doc. No. 7.) The motion has 17 been fully briefed and the court finds it suitable for submission on the papers and without 18 oral argument in accordance with Civil Local Rule 7.1(d)(1). For the reasons stated below, 19 the motion is GRANTED. 20 I. BACKGROUND 21 This action, originally filed in the San Diego Superior Court, consists of two claims 22 brought under California’s Unruh Civil Rights Act, California Civil Code §§ 51-52, and 23 sets forth the following material facts. Plaintiff is mobility impaired. (Doc. No. 1-2 at 17.) 24 At times, he relies on a wheelchair. (Id. at 20.) Defendant is a business entity that operates 25 a hotel. (Id.) On or about January 14, 2019, Plaintiff visited Defendant’s website to make 26 a reservation. (Id. at 21.) Plaintiff could not make a reservation using the website because 27 there was no information about “the features of the accessible rooms and the hotel.” (Id.) 28 Plaintiff seeks only statutory damages, attorney’s fees and costs, and injunctive relief. 1 After Plaintiff filed his Complaint on February 19, 2019 and Defendant was served in June 2 2019, Defendant filed a timely Notice of Removal based on federal question jurisdiction. 3 On August 20, 2019, Plaintiff filed the instant Motion to Remand. 4 II. LEGAL STANDARD 5 Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. 6 of Am., 511 U.S. 375, 377 (1994). “A federal court is presumed to lack jurisdiction in a 7 particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated 8 Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). An action in state 9 court can generally be removed to federal court when the case could have originally been 10 brought in federal court. 28 U.S.C. § 1441; see Exxon Mobil Corp. v. Allapattah Services, 11 Inc., 545 U.S. 546, 563 (2005). The defendant bears the burden of proving removal 12 jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121-22 (9th Cir. 2014). Any doubt 13 regarding removal jurisdiction is construed against the defendant and in favor of remanding 14 the case to state court. Gaus v. Miles, Inc. 980 F.2d 564, 566 (9th Cir. 1992); see also 15 Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (“[T]he court resolves 16 all ambiguity in favor of remand to state court.”). 17 Federal courts have original jurisdiction over all civil actions that arise under federal 18 law. 28 U.S.C. § 1331. A case may arise under federal law where “it appears that some 19 substantial, disputed question of federal law is a necessary element of one of the well- 20 pleaded state claims.” Franchise Tax Bd. of State of Cal. v. Construction Laborers 21 Vacation Tr. for Southern Cal., 463 U.S. 1, 13 (1983); see also Armstrong v. N. Mariana 22 Islands, 576 F.3d 950, 955 (9th Cir. 2009). “When a claim can be supported by alternative 23 and independent theories – one of which is a state law theory and one of which is a federal 24 law theory – federal question jurisdiction does not attach because federal law is not a 25 necessary element of the claim.” Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 26 1996). 27 Under the well-pleaded complaint rule, “federal jurisdiction exists only when a 28 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 1 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “[A] case will not be removable if 2 the complaint does not affirmatively allege a federal claim.” Beneficial Nat’l Bank v. 3 Anderson, 539 U.S. 1, 6 (2003). “The plaintiff is the master of his or her complaint and 4 may avoid federal jurisdiction by exclusive reliance on state law.” Easton v. Crossland 5 Mortg. Corp., 114 F.3d 979, 982 (9th Cir. 1997); see also ARCO Envt’l. Remediation, 6 L.L.C. v. Dep’t. of Health and Envt’l Quality of the State of Mont., 213 F.3d 1108, 1114 7 (9th Cir. 2000). 8 III. DISCUSSION 9 The parties dispute whether removal based on federal question jurisdiction was 10 proper. Plaintiff argues that removal was improper even though his state claims are 11 premised, at least in part, on Title III of the Americans with Disabilities Act (“the ADA”). 12 (Doc. No. 6 at 4.) Defendant argues that removal was proper because it “appears from the 13 Complaint that this is a civil rights action alleging violations of the [ADA],” (Doc. No. 1 14 at 2), and because Plaintiff’s claims are based “exclusively” and “solely” on the ADA, 15 (Doc. No. 7 at 5, 6, 13, 14). Defendant further argues that federal question jurisdiction 16 exists because: (1) Plaintiff seeks injunctive relief; (2) Defendant could have sought its 17 own declaratory judgment in federal court; and (3) Plaintiff does not allege intentional 18 discrimination. (Id.) For the reasons stated below, removal was improper. 19 A. Plaintiff’s Complaint 20 The face of Plaintiff’s Complaint does not include or affirmatively allege a claim 21 under federal law as a separate cause of action. See Caterpillar, 482 U.S. at 392 (noting 22 that federal-question jurisdiction exists only when a federal question is presented on the 23 face of “[a] properly pleaded complaint” and “[t]he rule makes the plaintiff the master of 24 the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”) 25 (citation omitted). Plaintiff’s first cause of action exclusively relies on the Unruh Act, 26 while seeking injunctive relief and damages. (Doc. No. 1-2 at 23-24.) While section 51(f) 27 of the Unruh Act states that a violation of the ADA constitutes a violation of the Unruh 28 Act, section 51(b) guarantees specific rights to persons with disabilities and can serve as a 1 basis for a claim independent of the ADA. Munson v. Del Taco, Inc., 208 P.3d 623, 627 2 (Cal. 2009); Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012). 3 Injunctive relief and damages are both available under the Unruh Act. See CAL. CIV. CODE 4 § 51(b); Turner v. Assoc. of Am. Med. Colls., 85 Cal. Rptr. 3d 94, 100 (Ct. App. 2008). 5 Plaintiff’s second cause of action is for declaratory relief based on violation of both 6 the Unruh Act and the ADA. (Doc. No. 1-2 at 25.) Actions for declaratory relief are 7 available under California law. See CAL. CIV. PROC. CODE §§ 22, 30, 1060. The fact that 8 Plaintiff seeks a declaration from a state court that Defendant violated the Unruh Act, as 9 well as the ADA, does not create federal question jurisdiction. “[F]ederal courts do not 10 have original jurisdiction, nor do they acquire jurisdiction on removal, when a federal 11 question is presented by a complaint for a state declaratory judgment[.]” Franchise Tax 12 Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 19 (1983); see also Merrell Dow Pharms. 13 Inc. v. Thompson, 478 U.S. 804, 808 (1986) (“[T]he mere presence of a federal issue in a 14 state cause of action does not automatically confer federal-question jurisdiction.”). Given 15 that the Unruh Act is premised, in part, on the ADA, a state court could issue declaratory 16 relief based on both the ADA and Unruh Act as a matter of state law. 17 B. Necessary Element 18 Although an ADA violation is an element of a claim under section 51(f) of the Unruh 19 Act, it is not a necessary element as required for federal question jurisdiction. In Wander 20 v. Kaus, 304 F.3d 856, 857 (9th Cir. 2002), the Ninth Circuit stated broadly that “[f]ederal- 21 question jurisdiction is not created merely because a violation of federal law is an element 22 of a state law claim.” As a result, district courts have frequently found that Unruh Act 23 claims premised on ADA violations do not create federal question jurisdiction. See 24 Martinez v. Matrix Health Prod., Inc., Case No. ED CV 19-742 DOC (AGRx), 2019 WL 25
26 1 Section 51(b) of the Unruh Act states that all persons, regardless of disability, are 27 “entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.” CAL. CIV. CODE 28 § 51(b). 1 2242074, at *3 (C.D. Cal. May 24, 2019) (“Matrix Health”); Licea v. J&P Park 2 Acquisitions, Inc., Case No. CV 19-68-R, 2019 WL 1296876, at *1 (C.D. Cal. Mar. 20, 3 2019) (“J&P”); Rios v. Friendly Hills Bank, Case No. CV 17-4582 BRO (JPR), 2017 WL 4 3530348, at *5 (C.D. Cal. Aug. 16, 2017) (“Friendly Hills”); Rios v. CWGS Enterprises, 5 LLC, Case No. CV 17-3614 RSWL (AFMx), 2017 WL 3449052, at *3 (C.D. Cal. Aug. 11, 6 2017) (“CWGS”); Pizarro v. CubeSmart, Case No. CV 14-5106 FMO (PLAx), 2014 WL 7 3434335, at *2 (C.D. Cal. July 11, 2014); Glover v. Borelli’s Pizza, Inc., 886 F. Supp. 2d 8 1200, 1202 (S.D. Cal. 2012); Carpenter v. Raintree Realty, LLC, Case No. CV 11-6798 9 RGK (MRWx), 2012 WL 2579179, at *2 (C.D. Cal. July 2, 2012); Gunther v. Ralphs 10 Grocery Co., Case No. CV 05-2243 GHK (PJWx), 2005 WL 3789582, at *2 (C.D. Cal. 11 May 3, 2005). 12 Therefore, in addition to being incorrect that Plaintiff’s claims are based 13 “exclusively” and “solely” on the ADA, Defendant is also incorrect that federal question 14 jurisdiction exists because Plaintiff’s claims are based, at least in part, on the ADA. As 15 noted above, district courts have consistently rejected this argument. While Plaintiff could 16 have brought his claim under both federal and state law, he is the master of his complaint 17 and has chosen to pursue only state causes of action and avoid federal jurisdiction. See 18 Easton, 114 F.3d at 982; ARCO Envt’l. Remediation, 213 F.3d at 1114 (9th Cir. 2000). 19 Defendant’s remaining arguments regarding injunctive relief, declaratory relief, and 20 intentionality are similarly insufficient to satisfy its burden of proving the court’s removal 21 jurisdiction. 22 C. Injunctive Relief 23 Plaintiff’s request for injunctive relief does not, as Defendant claims, create federal 24 question jurisdiction and require the case to remain in federal court. In Wander, the 25 plaintiff brought a claim in federal court for injunctive relief under the ADA as well as a 26 claim for damages under state law. 304 F.3d at 857. When the federal claim for injunctive 27 relief became moot, the court declined to exercise supplemental jurisdiction over the state 28 claim for damages. Id. The court found that “Congress intended that there be no federal 1 cause of action for damages for a violation of Title III of the ADA.” Id. (emphasis added). 2 Therefore, the court held that “there is no federal-question jurisdiction over a lawsuit for 3 damages brought under [California law], even though the California statute makes a 4 violation of the federal [ADA] a violation of state law.” Id. 5 Because the court in Wander relied on Congress’ intent that damages be prohibited 6 in federal court for ADA violations, some district courts found that Wander left open the 7 possibility that a court could (1) find federal question jurisdiction over claims for injunctive 8 relief under the Unruh Act and (2) exercise supplemental jurisdiction over related claims 9 for damages under the Unruh Act. See Licea v. Reebok Int’l Ltd, Case No. CV 19-970 10 TJH, 2019 WL 4014431, at *1 (“Reebok”) (C.D. Cal. Aug. 23, 2019) (“Wander did not 11 address whether a federal question is raised when the state law claim seeks injunctive relief 12 and an element of the claim is satisfied by an ADA violation.”); Martinez v. Adidas Am., 13 Inc., Case No. ED CV 19-841 (JGB) KKx, 2019 WL 3002864, at *4 (C.D. Cal. July 9, 14 2019) (“Adidas”); Thurston v. ClearPath Lending, Inc., Case No. SA CV 18-2094 JVS 15 (JDEx), 2019 WL 366405, at *4 (C.D. Cal. Jan. 28, 2019) (“Clearpath”); Rios v. New York 16 & Co., Inc., Case No. CV 17-4676 ODW (AGRx), 2017 WL 3575220, at *2 (C.D. Cal. 17 Aug. 17, 2017) (“New York & Co.”); Thurston v. Omni Hotels Mgmt. Corp., Case No. CV 18 16-2596 TJH (KKx), 2017 WL 3034333, at *1 (C.D. Cal. May 19, 2017) (“Omni”); 19 Thurston v. Container Store, Inc., Case No. CV 16-2658 SVW (DTB), 2017 WL 658806, 20 at *2 (C.D. Cal. Feb. 16, 2017) (“Container Store”); Jackson v. Yoshinoya Am. Inc., Case 21 No. CV 12-8518 MMM (Ex), 2013 WL 865596, at *3 (C.D. Cal. Mar. 7, 2013); Fontano 22 v. Little Caesar Enterprises Inc, Case No. CV 10-6707 GAF (FFMx), 2010 WL 4607021, 23 at *2 (C.D. Cal. Nov. 3, 2010); Carpenter v. Wu, Case No. CV 08-5568 DSF (JTL), 2008 24 WL 4534270, at *2 (C.D. Cal. Oct. 1, 2008); see also Pickern v. Best W. Timber Cove 25 Lodge Marina Resort, 194 F. Supp. 2d 1128, 1132 n.5 (E.D. Cal. 2002). 26 Despite Defendant’s contention, none of these cases found that federal question 27 jurisdiction existed over Unruh Act claims for injunctive relief premised on ADA 28 violations, or that supplemental jurisdiction should be exercised over related state claims 1 for damages. Instead, all of these courts, as well as others, found that federal question 2 jurisdiction did not exist because proving an ADA violation is just one way of proving an 3 Unruh Act violation. See Martinez v. Greatcollections.com, LLC, Case No. CV 19-1647 4 JLS (KES), 2019 WL 4742299, at *1 (C.D. Cal. Sept. 27, 2019) (“Greatcollections.com”) 5 (“[W]here a plaintiff pursues a non-ADA theory of liability – even if he pursues a 6 concurrent theory premised on an ADA violation – no federal question is a necessary 7 element of his Unruh Act claim, and federal jurisdiction does not attach.”); Reebok, 2019 8 WL 4014431, at *1 (“If the state law claim can be violated for reasons independent of an 9 incorporated federal statute, then there is no substantial, disputed question of federal law.”); 10 Adidas, 2019 WL 3002864, at *3 (“The Court agrees with the other courts in this district 11 and finds no federal jurisdiction exists because Plaintiffs adequately allege a non-ADA 12 theory of [an Unruh Act] violation.”); Matrix Health, 2019 WL 2242074, at *3; J&P, 2019 13 WL 1296876, at *1 (“[I]t does not follow that a violation of the ADA must necessarily be 14 established at trial in order to succeed on a [an Unruh Act] claim. . . . Whether Plaintiffs 15 have a viable claim under the [the Unruh Act] is a question for the state court and has no 16 bearing on the issue of federal jurisdiction.”); ClearPath, 2019 WL 366405, at *3 (“[T]here 17 are at least two theories under which Defendant could be held liable for violating the Unruh 18 Act. . . . [I]t is possible that Plaintiff will obtain injunctive relief based on a theory 19 independent of the ADA.”); Pineda v. Kroger Co., Case No. CV 19-75 FMO (SKx), 2019 20 WL 192926, at *2 (C.D. Cal. Jan. 15, 2019) (“[T]he fact that plaintiff relies in part on ADA 21 violations as the basis for his state claims, is insufficient to confer federal question 22 jurisdiction[.]”); New York & Co., 2017 WL 3575220, at *2 (finding that no federal 23 question jurisdiction exists because the plaintiff “also allege[d] that Defendant’s conduct 24 violates the Unruh Act based on that act’s own provisions”); Friendly Hills, 2017 WL 25 3530348, at *5 (“Because the Court does not have to address the merits of the ADA 26 violation for Plaintiff to succeed on its Unruh Act claims, the Court finds that Plaintiff’s 27 claims do not ‘necessarily raise’ a federal question.”); CWGS, 2017 WL 3449052, at *6 28 (declining to find federal question jurisdiction because the plaintiff alleged that defendant’s 1 conduct constituted a violation of both the ADA and Unruh Act); Thurston v. Chino 2 Commercial Bank, N.A., Case No. CV 17-1078 BRO (JCx), 2017 WL 3224681, at *5 (C.D. 3 Cal. July 27, 2017) (“Plaintiff alleges violations of the Unruh Act on two theories, only 4 one of which involves a violation of the ADA.”); Omni, 2017 WL 3034333, at *1 (“The 5 Unruh Act may be violated in a number of ways, with an ADA violation being just one of 6 those ways.”); Container Store, 2017 WL 658806, at *3 (“[T]he ADA violation is only one 7 of two theories of liability presented by the Plaintiff, meaning that the ADA may not be 8 involved at all in the litigation.”); Cohen v. Ralphs Grocery Co., Case No. CV 13-1728 9 GAF (JEMx), 2013 WL 1303825, at *2 (C.D. Cal. Mar. 26, 2013) (“[V]iolation of the 10 ADA is merely an additional way in which Plaintiff can prove a violation of California 11 state law; it is not ‘a necessary element of one of the well-pleaded state claims.’”) 12 (“Ralphs”); Jackson, 2013 WL 865596, at *3 (“While the violations described in the 13 complaint may also be ADA violations – and proving an ADA violation would suffice to 14 obtain relief under California disability law – such violations are not a necessary part of 15 [the plaintiff’s] claim.”).2 16 As noted above, Plaintiff alleges a violation of section 51(f) of the Unruh Act, which 17 is dependent on the ADA, as well as a violation of section 51(b), which is not. CAL. CIV. 18 CODE §§ 51(b), 51(f); (Doc. No. 1-2 at 23-24.) Accordingly, there is no good reason to 19 deviate from the multitude of other district courts finding that Unruh Act claims premised 20 on the ADA, including those seeking injunctive relief, are outside the court’s federal 21 question jurisdiction. Even if a court could find that Plaintiff’s request for injunctive relief 22 raises a federal question, in deciding whether to exercise supplemental jurisdiction over the 23 claim for damages, the court would face the same problem as the court in Wander, i.e. that 24 Congress did not intend for damages to be available in federal court for violations of the 25
26 2 In finding that removal was improper because violating the ADA is just one way of 27 violating the Unruh Act, district courts relied on Wander as well as Armstrong, 576 F.3d 950 (cited in Reebok and Omni) and Rains, 80 F.3d 339 (cited in Adidas, J&P, 28 ClearPath, Friendly Hills, Ralphs and Greatcollections.com). 1 ADA. See Wander, 304 F.3d at 859 (“Wander would have the federal court exercise 2 jurisdiction over his state-law damage suit, premised on a violation of the ADA, even 3 though Congress intended that such ADA violations not give rise to a federal cause of 4 action for damages.”). Defendant does not cite a single case in which a court found that 5 federal question jurisdiction existed over an Unruh Act claim because the plaintiff sought 6 injunctive relief, let alone one where the court made such a finding and then exercised 7 supplemental jurisdiction over a claim for damages. Indeed, some courts have specifically 8 rejected Defendant’s argument that seeking injunctive relief in this context raises a federal 9 question. See, e.g., ClearPath, 2019 WL 366405, at *4; CWGS, 2017 WL 3449052, at *3. 10 The Defendant is therefore incorrect in stating that district “courts” have distinguished 11 Wander and held that there is federal question jurisdiction if the plaintiff seeks injunctive 12 relief. (Doc. No. 7 at 5.) 13 D. Declaratory Judgment 14 Defendant argues that federal question jurisdiction exists because it could have 15 brought its own action for declaratory relief against Plaintiff in federal court. (Doc. No. 7 16 at 9.) Defendant contends that “[a]n action for a declaratory judgment invokes federal 17 question jurisdiction when the coercive action that would have been brought (had 18 declaratory judgments not been available) would have been within that jurisdiction.” (Id. 19 at 8.) 20 In cases where a plaintiff seeks declaratory relief under state law, federal question 21 jurisdiction exists if “the declaratory judgment defendant could have brought a coercive 22 action in federal court to enforce its rights” and that action would, if brought, arise under 23 federal law. Janakes v. United States Postal Service, 768 F.2d 1091, 1093 (9th Cir. 1985); 24 see also Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. 25 California, 463 U.S. 1, 19 (1983); Standard Ins. Co. v. Saklad, 127 F.3d 1179, 1181 (9th 26 Cir. 1997) (“A person may seek declaratory relief in federal court if the one against whom 27 he brings his action could have asserted his own rights there.”). 28 Nothing in the record suggests that the Defendant could have brought a “coercive 1 action” arising under federal law against Plaintiff. While Defendant argues that, if it had 2 prior notice of Plaintiff’s lawsuit, it could have brought its own action for declaratory relief 3 against Plaintiff, (Doc. No. 7 at 9), that did not occur here. Moreover, Defendant cites no 4 authority that actions for declaratory relief in federal court are “coercive actions.” Courts 5 have long held that federal actions for declaratory relief are procedural. Medtronic, Inc. v. 6 Mirowski Family Ventures, LLC, 571 U.S. 191, 199 (2014) (citing Aetna Life Ins. Co. v. 7 Haworth, 300 U.S. 227, 240 (1937)). Defendant is therefore incorrect that Plaintiff’s 8 request for declaratory relief creates federal question jurisdiction. 9 E. Intentionality 10 Finally, Defendant argues that Plaintiff fails to plead intentional discrimination, 11 which is a “required element of Plaintiff’s Unruh Act claim where it is not exclusively 12 predicated on the ADA.”3 (Doc. No. 7 at 13.) Defendant is correct that in order to establish 13 a violation of the Unruh Act independent of the ADA, the plaintiff must plead intentional 14 discrimination. Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, 15 Inc., 742 F.3d 414, 425 (9th Cir. 2014). District courts have found it sufficient, however, 16 for plaintiff to plead intentionality by pleading that the defendant had a policy and practice 17 of maintaining an inaccessible website. See, e.g., Adidas, 2019 WL 3002864, at *4 (also 18 noting that the plaintiff gave notice of the inaccessibility prior to filing suit); ClearPath, 19 2019 WL 366405, at *3. Here, Plaintiff pleads that Defendant had a policy and practice of 20 maintaining an inaccessible website. (Doc. No. 1-2 at 23.) Although the words 21 “intentional,” “willful,” or the like do not appear in the Complaint, Plaintiff nonetheless 22 pleads a plausible claim for intentional discrimination. See ClearPath, 2019 WL 366405, 23 at *3. As recognized by another district court, “[t]he ultimate question of whether 24 Defendant, in fact, intentionally discriminated against Plaintiff will be fleshed out later in 25 the case, through discovery and trial.” Id. 26
27 3 This argument by Defendant seems to contradict its argument that Plaintiff’s Complaint 28 is based “exclusively” and “solely” on the ADA. (Doc. No. 7 at 5, 6, 13-14.) 1 F. Attorney’s Fees 2 Plaintiff requests attorney’s fees and costs incurred in preparing the instant Motion 3 to Remand. (Doc. No. 6 at 7.) “An order remanding [a] case may require payment of just 4 costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 5 28 U.S.C. § 1447(c). “[A]bsent unusual circumstances, attorney’s fees should not be 6 awarded when the removing party has an objectively reasonable basis for removal.” 7 Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005). Plaintiff argues that 8 Defendant’s basis for removal was not objectively reasonable because Defendant’s counsel 9 (1) deliberately ignored the Ninth Circuit’s binding precedent in Wander and related 10 authority and (2) improperly removed similar cases in the past. (Id.; see also Doc. No. 8 11 at 11 (“Defendant’s removal is inherently unreasonable because this is a common, and 12 often unsuccessful, tactic employed by Counsel for Defendant with the primary goal of 13 causing expense and delay – an allegation Defendant does not address.”).) Defendant 14 argues that removal was objectively reasonable because the case presents a federal 15 question.4 (Doc. No. 7 at 15-16.) 16 Defendant’s omission of Wander from its Notice of Removal does not, by itself, 17 make the basis for removal objectively unreasonable. Removal requires only that the 18 defendant file a notice of removal with the federal court “containing a short and plain 19 statement of the grounds for removal.” 28 U.S.C. § 1446(a). Here, the Defendant did so. 20 (See Doc. No. 1 at 2.) Additionally, both parties discuss Wander at length in their 21 respective memoranda. (See Doc. Nos. 6-8.) 22 Furthermore, most district courts addressing the issue have declined to award 23 attorney’s fees, typically because of the potential ambiguity in Wander. See Reebok, 2019 24
25 4 In arguing against an award of attorney’s fees, Defendant also states that “Plaintiff filed 26 his motion without so much as responding to Defendant’s offer to stipulate to remand if 27 Plaintiff clarified that he was not seeking relief under the ADA or claiming any violations thereof.” (Doc. No. 7 at 15-16.) Defendant does not explain why Plaintiff’s refusal to 28 stipulate that he is not relying on the ADA weighs against awarding attorney’s fees. 1 WL 4014431, at *1; Adidas, 2019 WL 3002864, at *5); Matrix Health, 2019 WL 2242074, 2 at *3 (noting, but not relying on, plaintiff’s refusal to stipulate that he was not seeking 3 recovery under federal law); ClearPath, 2019 WL 366405, at *4; Container Store, 2017 4 WL 658806, at *3; Jackson, 2013 WL 865596, at *3; Fontano, 2010 WL 4607021, at *2. 5 The objective reasonableness of Defendant’s removal action is at least questionable, 6 however, because, as discussed above, district courts have repeatedly, and in apparent 7 uniformity, found similar removal actions to be improper. Over a half-dozen of these 8 improperly removed cases were brought by Defendant’s counsel. See 9 Greatcollections.com, 2019 WL 4742299; Reebok, 2019 WL 4014431; Adidas, 2019 WL 10 3002864; Matrix Health, 2019 WL 2242074; New York & Co., 2017 WL 3575220; Omni, 11 2017 WL 3034333; Container Store, 2017 WL 658806. Continually making the same 12 losing arguments in support of removal, as Defendant does here, can be grounds for 13 awarding attorney’s fees. See, e.g., Klawiter v. Ford Motor Co., Case No. 19cv1889 WHO, 14 2019 WL 2484321, at *3 (N.D. Cal. June 14, 2019). The Defendant does not cite a single 15 instance where a comparable removal action survived a motion to remand. Although 16 Defendant states that “courts” have found federal question jurisdiction in similar cases, 17 (Doc. No. 7 at 5, 10), in the two cases cited by Defendant, the courts did no such thing. In 18 Pickern, 194 F. Supp. 2d at 1133, the court found it lacked federal question jurisdiction. 19 In Fontano, 2010 WL 4607021, at *1, the court granted an unopposed motion to remand 20 based on a lack of federal question jurisdiction. Although both cases contain dicta 21 suggesting a possible distinction between cases involving claims for damages and those 22 involving claims for injunctive relief, Defendant does not cite a single case relying on this 23 possible distinction. Accordingly, at least one district court has found a similar removal 24 action to be objectively unreasonable. See J&P, 2019 WL 1296876, at *2 (awarding 25 plaintiff attorney’s fees “because binding Ninth Circuit precedent clearly indicates that 26 removal was improper, and because courts in this district have recently remanded cases on 27 similar (in some cases nearly identical) facts”). 28 1 Here, the court would have been inclined to grant Plaintiff's request for attorney’s 2 ||fees had it not been for Plaintiff's counsel’s participation in an unnecessary tit-for-tat 3 ||exchange of attacks by both parties’ counsel in their respective memoranda. In □□□□□□□□□□□ 4 || Motion to Remand, Plaintiffs counsel points out that one of Defendant’s counsel was once 5 || ordered to show cause as to why he should not be sanctioned under Rule 11 for improperly 6 || removing a case under a theory that was similar, if not identical, to the theory offered here. 7 ||(Doc. Nos. 6 at 7, 6-2 at 2-3.) Plaintiff's counsel failed to disclose, however, that 8 ||Defendant’s counsel satisfied the show cause order and was not sanctioned. See Order 9 || Discharging OSC re: Sanctions, Ortiz v. American Florists’ Exchange, Ltd., Case. No. CV 10 || 15-6251 DSF (PJWx) (C.D. Cal. Aug. 19, 2015), Doc. No. 15. In Defendant’s Response 11 Opposition, Defendant’s counsel points out that the State of California recently filed a 12 || lawsuit against Plaintiff and his counsel regarding their extensive, and allegedly fraudulent, 13 || filing of ADA claims against businesses. (Doc. No. 7 at 6-7.) Defendant’s counsel failed 14 disclose, however, that the State did not prevail and the lawsuit was dismissed with 15 || prejudice. (See Doc. No. 8 at 2.) Finally, in Plaintiff's Reply, Plaintiff's counsel accuses 16 || Defendant’s counsel of exhibiting “a history of bad faith litigation tactics” and quotes 17 multiple cases in which Defendant’s counsel was admonished for various reasons. (Id. at 18 This conduct by both parties is, at best, unnecessary and unprofessional. Plaintiffs 19 ||request for attorney’s fees and costs related to his Motion to Remand is DENIED. 20 IV. CONCLUSION 21 For the foregoing reasons, Plaintiff's Motion to Remand is GRANTED. The case 22 hereby REMANDED to the Superior Court of California for the County of San Diego. 23 || The Clerk of the Court is directed to close this case. 24 IT IS SO ORDERED. 25 || DATED: November 19, 2019 6 Y T ILLER nited States District Judge 27 28 13