Tosic v. Blakemore-Tomason

Opinion

1 2

3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 PREDRAG TOSIC, CASE NO. C23-0619JLR 11 Plaintiff, ORDER v. 12 HEATHER BLAKEMORE- 13 TOMASON, 14 Defendant. 15 I. INTRODUCTION 16 Before the court is Defendant Heather Blakemore-Tomason’s motion to remand 17 this action back to state court and for attorneys’ fees incurred in bringing the motion. 18 (MTR (Dkt. # 6); Reply (Dkt. # 36).) Plaintiff Predrag Tosic, who proceeds pro se and in 19 forma pauperis (“IFP”), opposes the motion. (Resp. (Dkt. # 31).) Mr. Tosic has also 20 filed several motions for leave to file additional briefs and materials in support of his 21 opposition to Ms. Tomason’s motion to remand. (See 1st Mot. (Dkt. # 32); 2d Mot. (Dkt. 22 1 # 35); see also 5/22/23 Tosic Decl. (Dkt. # 28); 5/23/23 Tosic Decl. (Dkt. # 29); Prop. 2d 2 Resp. (Dkt. # 33); App’x. (Dkt. # 34).) The court has reviewed the parties’ submissions,

3 the relevant portions of the record, and applicable law. Being fully advised, the court 4 DENIES Mr. Tosic’s motions to file additional materials, GRANTS in part and DENIES 5 in part Ms. Tomason’s motion, and REMANDS the matter back to state court. 7 Mr. Tosic and Ms. Tomason, who were formerly married, have a parenting plan 8 for their minor daughter. (See 5/1/23 Villacin Decl. (Dkt. # 7) ¶ 3, Ex. 1 (Parenting

9 Plan).) In June 2019, Mr. Tosic filed a petition in King County Superior Court to modify 10 the parenting plan. (Id. ¶ 4, Ex. 2 (Modification Petition).) On November 15, 2021, the 11 family court ruled against Mr. Tosic after a five-day trial and Mr. Tosic sought review of 12 the decision in the Washington State Court of Appeals, Division I. (Id. ¶ 5, Ex. 3 (Order 13 Denying Modification Petition).)1 There, Mr. Tosic’s opening appellate brief was due,

14 after many extensions, on April 28, 2023 (id. ¶ 15, Ex. 13 (denying Mr. Tosic’s 15 emergency motion for an extension to file an opening brief)), but Mr. Tosic removed his 16 own civil action to this court on April 27, 2023 (see NOR (Dkt. # 5)). Ms. Tomason now 17 moves to remand the case back to state court because, among other reasons, (1) this court 18 lacks jurisdiction over the action, (2) Mr. Tosic, who filed the petition for modification, is

19 not entitled to removal as the de facto plaintiff in the underlying action, and (3) Mr. 20

1 The Court of Appeals also denied Mr. Tosic’s request to stay the modification order 21 pending appeal. (See 5/1/23 Villacin Decl. ¶¶ 6-7, Exs. 4-5.) Mr. Tosic continues to litigate this request as well as motions to disqualify judges and court commissioners in state court. (See id. 22 ¶¶ 8-12, Exs. 6-10 (attaching various state court documents).) 1 Tosic’s removal was untimely. (Mot. at 2.) Ms. Tomason also seeks attorneys’ fees for 2 having to bring the remand motion. (Id. at 13.)

4 The court begins by addressing Mr. Tosic’s motions to file additional materials in 5 support of his response to Ms. Tomason’s motion to remand. The court then analyzes 6 Ms. Tomason’s motion to remand before turning to her request for attorneys’ fees. 7 A. Mr. Tosic’s Motions to File Additional Materials 8 This District’s Local Rules permit a responding party one brief in opposition to

9 any motion, including a motion to remand. See Local Rules W.D. Wash. LCR 7(b)(2). 10 The court already granted Mr. Tosic’s request for an extension of time to respond to Ms. 11 Tomason’s motion. (5/23/23 Order (Dkt. # 30).) Nevertheless, Mr. Tosic asks the court 12 for leave to file additional materials in support of his response to Ms. Tomason’s motion 13 to remand. (See 1st Mot.; 2d Mot.; see also 5/22/23 Tosic Decl.; 5/23/23 Tosic Decl.;

14 Prop. 2d Resp; App’x.) 15 The court has reviewed Mr. Tosic’s filings and determined that they have no effect 16 on the court’s decision. Accordingly, the court DENIES Mr. Tosic’s motions for leave to 17 file additional materials. 18 B. Motion to Remand

19 The federal removal statute provides that unless otherwise prohibited, “any civil 20 action brought in a State court of which the district courts of the United States have 21 original jurisdiction, may be removed by the defendant or the defendants, to the district 22 court of the United States for the district and division embracing the place where such 1 action is pending.” 28 U.S.C. § 1441(a)(1). A defendant must file a notice of removal 2 “within 30 days after the receipt . . . of a copy of the initial pleading” in state court, or, if

3 the initial pleading is not removable, “within 30 days after receipt . . . of a copy of an 4 amended pleading, motion, [or] order.” Id. § 1446(b)(1), (c)(3). Federal courts strictly 5 construe the removal statute and must reject jurisdiction if there is any doubt as to the 6 right of removal in the first instance. Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 7 F.3d 1027, 1034 (9th Cir. 2014); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 8 The removing defendant faces a “strong presumption” against removal and bears the

9 burden of establishing, by a preponderance of the evidence, that removal was proper. 10 Gaus, 980 F.2d at 567. 11 1. Mr. Tosic is not the Defendant 12 A plaintiff has no right to remove his own suit to federal court. See, e.g., Chicago, 13 R.I. & P.R. Co. v. Stude, 346 U.S. 574, 580 (1954) (stating that plaintiff cannot remove

14 action); Yakama Indian Nation v. State of Wash. Dept. of Revenue, 176 F.3d 1241, 1248 15 (9th Cir. 1999) (“The right to remove a case from state to federal court is vested 16 exclusively in ‘the defendant or the defendants’”) (quoting 28 U.S.C. § 1441(a)); Szanto 17 v. Lewin, No. CV 12-00535 MMM, 2012 WL 4513745, at *1 (C.D. Cal. Sept. 30, 2012) 18 (collecting cases supporting proposition that a plaintiff cannot remove their own action);

19 Edwards v. Edwards, No. 2:22-CV-08814-SB-JC, 2023 WL 172020, at *1 (C.D. Cal. 20 Jan. 12, 2023) (remanding case because plaintiff could not remove their own action). 21 Ms. Tomason argues that Mr. Tosic’s purported removal of his own case to this 22 court was improper. (MTR at 11-12.) State court filings identify Mr. Tosic as the 1 “respondent” in the petition to modify the parenting plan (see Modification Petition), but 2 only because Ms. Tomason filed the initial action for a parenting plan (see Parenting Plan

3 (identifying Ms. Tomason as the “petitioner”)). Mr. Tosic, moreover, does not dispute 4 that he initiated the same action he purportedly removed. (See generally Resp.) Mr. 5 Tosic is not the defendant in the underlying action and was therefore not entitled to 6 remove his own lawsuit. See 28 U.S.C. § 1441(a)(1). 7 2. Mr. Tosic’s Purported Removal was Untimely 8 Ms. Tomason argues that even if Mr. Tosic were not the de facto plaintiff in the

9 underlying action, his purported removal is extremely untimely. (MTR at 12.) Mr. Tosic 10 filed his removal notice on April 27, 2023, seeking federal “take over” of all state court 11 proceedings, including the family court’s November 15, 2021 order denying his petition. 12 (See Order Denying Modification Petition; Prop. NOR (Dkt. # 1-1) at 5 (requesting “that 13 the federal court take over” all state court cases between the parties).) Mr. Tosic

14 therefore did not file his notice of removal within the 30 days after receipt of an order 15 presenting a basis for removal, as required by the removal statute. See 28 U.S.C. 16 § 1446(c)(3). The court rejects Mr. Tosic arguments that the statute’s time limitations 17 should not apply to him. (See Resp. at 11.) The court is also unpersuaded that his 18 removal was timely because the Washington Court of Appeals issued rulings in April

19 2023 (see id.) because Mr. Tosic sought to remove his underlying petition (id. at 2; Prop. 20 NOR at 5). Accordingly, Mr. Tosic’s purported removal was untimely. 21 22 1 3. The Court Lacks Subject-Matter Jurisdiction Over This Action 2 “Only state-court actions that originally could have been filed in federal court may

3 be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 4 386, 392 (1987). “[F]ederal jurisdiction exists only when a federal question is presented 5 on the face of the plaintiff’s properly pleaded complaint.” Id. (citing Gully v. First Nat’l 6 Bank, 299 U.S. 109, 112-13 (1936)). The domestic relations exception divests federal 7 courts of jurisdiction over any action seeking “issuance or modification of a divorce, 8 alimony, or child-custody decree.” Bailey v. MacFarland, 5 F.4th 1092, 1096 (9th Cir.

9 2021) (citing Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992)). 10 Ms. Tomason argues that the domestic relations exception bars federal review of 11 the parties’ parenting plan. (MTR at 5-10.) The court agrees: Mr. Tosic’s petition to 12 modify the parties’ parenting plan—a “child-custody decree”—falls squarely within the 13 domestic relations exception and belongs in state court. See Bailey, 5 F.4th at 1096;

14 (Modification Petition). Thus, because Mr. Tosic’s petition does not pose any federal 15 question, it could not have originally been brought in federal court. (See Modification 16 Petition); Caterpillar Inc., 482 U.S. at 392. 17 Mr. Tosic’s assertion that this court has jurisdiction because he argues that his 18 federal statutory and constitutional rights were violated by the state courts in the

19 underlying proceeding is unavailing. (See Resp. at 4-7.) Mr. Tosic did not plead these 20 issues in his petition. See Caterpillar Inc., 482 U.S. at 392-93. Mr. Tosic cites several 21 federal cases that address constitutional familial rights implicated by state court 22 decisions, but none provides an avenue to federal adjudication of familial rights via 1 removal of an order on a child-custody decree. (See Resp. at 5); see e.g., Troxel v. 2 Granville, 530 U.S. 57 (2000) (deciding appeal from Washington Supreme Court);

3 Santosky v. Kramer, 455 U.S. 745 (1982) (deciding appeal from New York’s highest 4 court); Quillion v. Walcott, 434 U.S. 246 (1978) (deciding appeal from George Supreme 5 Court); Stanley v. Illinois, 405 U.S. 645 (1972) (deciding appeal from Illinois Supreme 6 Court). Rather, the United States Supreme Court reviewed each of these cases after the 7 parties had exhausted their appeals in state courts. See 28 U.S.C. § 1257 (providing, in 8 part that “Final judgments or decrees rendered by the highest court of a State . . . may be

9 reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or 10 statute of the United States is drawn in question.”). Thus, remand is appropriate because 11 the action could not have originally been filed in federal court. 12 4. Summary 13 The court GRANTS Ms. Tomason’s motion to remand because Mr. Tosic is not

14 the defendant, for untimeliness, and for lack of subject matter jurisdiction. The court 15 need not address Ms. Tomason’s remaining arguments in favor of remand. 16 C. Request for Attorneys’ Fees 17 The court may award attorneys’ fees and costs incurred in bringing a motion for 18 removal if the attempted removal was objectively unreasonable. See Martin v. Franklin

19 Capital Corp., 546 U.S. 132, 136 (2005); 28 U.S.C. § 1447(c) (allowing awards of “just 20 costs and any actual expenses, including attorney fees” incurred due to removal); see also 21 Houden v. Todd, 348 F. App’x 221, 223 (9th Cir. 2009) (finding removal objectively 22 unreasonable where “[t]he relevant case law clearly foreclosed [the] attempted removal.”) 1 (citing Patel v. Del Taco, Inc., 446 F.3d 996, 999-1000 (9th Cir. 2006)). However, the 2 court retains discretion to determine whether “unusual circumstances warrant a departure

3 from the rule in a given case.” Martin, 546 U.S. at 141. Such a departure should 4 nevertheless be faithful to the purposes of the awarding fees under 28 U.S.C. § 1447(c), 5 which are to “deter removals sought for the purpose of prolonging litigation and 6 imposing costs on the opposing party.” Id. 7 Ms. Tomason seeks an award of $9,980.00 in attorneys’ fees incurred in bringing 8 the instant motion, arguing Mr. Tosic’s removal lacked an objectively reasonable basis.

9 (See Mot. at 13-14; Reply at 9-11; 5/26/23 Villacin Decl. (Dkt. # 37) ¶ 7, Ex. C 10 (describing fees incurred).) The court agrees that Mr. Tosic’s attempted removal was 11 objectively unreasonable, and likely had the effect of stalling proceedings in the 12 Washington Court of Appeals. The court nevertheless concludes that an award of fees is 13 not warranted here for two reasons. First, because Mr. Tosic is not represented by

14 counsel, the court cannot conclude that Mr. Tosic knew he lacked any reasonable basis 15 for removal. See John Daly Boulevard Assocs., LP v. Gonzales, No C 14-4213 PJH, 16 2014 WL 6808343, at *3 (N.D. Cal. December 2, 2014) (declining to award fees where 17 unrepresented, IFP defendant might not have known she lacked a basis for removal). 18 Second, the court determined that Mr. Tosic lacks the funds to pay court filing fees when

19 it granted his application to proceed IFP. (See IFP App. (Dkt. # 1) at 1 (representing that 20 Mr. Tosic has been unemployed since August 2021, lives off his savings, and has no 21 income); 5/1/23 IFP Order (Dkt. # 4)). An award of attorneys’ fees that Mr. Tosic is 22 likely unable to pay would not serve the removal statute’s deterrent purpose. See John 1 Daly Boulevard, 2014 WL 6808343, at *3 (finding award of fees inappropriate due to pro 2 se, IFP defendant’s financial status). The court therefore declines to award Ms. Tomason

3 attorneys’ fees but cautions Mr. Tosic that any future attempt to remove the proceedings 4 may justify an award of attorneys’ fees or other sanctions. 6 For the foregoing reasons, the court DENIES Mr. Tosic’s motions for leave to file 7 additional materials (Dkt. ## 32, 35) GRANTS Ms. Tomason’s motion to remand (Dkt. 8 # 6) and denies Ms. Tomason’s request for attorneys’ fees. The court DIRECTS the

9 Clerk to REMAND this matter to the Washington State Court of Appeals, Division I, to 10 CLOSE this case, and not to accept any further filings in this matter. 11 Dated this 29th day of May, 2023. 12 A 13 United States District Judge 15 16 17 18 19 20 21 22