Herreman Aguirre v. Loeza

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT SEATTLE [9] 10 FRANCISCO XAVIER HERREMAN CASE NO. C19-1443 MJP AGUIRRE, 11 ORDER Plaintiff, [12] v. [13] HOLLY MARIE LOEZA, [14] Defendant. [15] 16 HOLLY MARIE LOEZA, 17 Plaintiff, 18 v. 19 FRANCISCO XAVIER HERREMAN AGUIRRE, [20] Defendant. [21] 22 // 23 // 24 // 1 This matter comes before the Court on Plaintiff’s Motion to Remand (Dkt. No. 9). 2 Having read the Motion, the Response (Dkt. No. 17), and the Reply (Dkt. No. 18), the Court 3 GRANTS Plaintiff’s Motion. 4 Background 5 Plaintiff, a citizen and resident of Mexico, had a romantic relationship with Defendant, 6 who is a United States citizen and resides in King County, Washington. (Dkt. No. 1, Ex. 1 7 (“FAC”), ¶¶ 1.1-1.2, 2.1.) Plaintiff claims that Defendant convinced him to buy two parcels of 8 real property—one in King County, one in Pierce County—by making a number of 9 misrepresentations, including that she was a licensed real estate agent at the time. (Id., ¶ 2.4.) 10 On June 27, 2019, Plaintiff filed a complaint in King County Superior Court, and an amended 11 complaint on July 29, 2019, alleging causes of action for partition, fraud and misrepresentation, 12 negligent misrepresentation, the tort of outrage, quiet title, and declaratory judgment. (Dkt. No. 13 10, Declaration of Carlos Sosa (“Sosa Decl.”), Ex. 3; FAC.) On September 9, 2019, Defendant 14 answered Plaintiff’s amended complaint and asserted her own counterclaims. (Dkt. No. 1, ¶ 1.) 15 The following day, on September 10, 2019, Plaintiff filed a lis pendens, asserting ownership over 16 the real property that is the subject of the underlying claims. (Sosa Decl., Ex. 5.) Defendant 17 then removed the action to this Court based on diversity jurisdiction, filing separate actions for 18 each property, under case numbers C19-1443 MJP and C19-5905 MJP. Plaintiff has now moved 19 to remand the cases to King County Superior Court. 20 Discussion 21 I. Plaintiff’s Motion to Remand 22 Plaintiff argues the Court lacks subject matter jurisdiction and that removal was untimely. 23 (Dkt. No. 9.) Plaintiff is also seeking attorney fees and costs. (Id. at 9-10.) The removal statute [24] 1 is strictly construed against removal jurisdiction, and the “strong presumption” against removal 2 jurisdiction means that the defendant always has the burden of establishing that removal is 3 proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). 4 A. Removal 5 1. Subject matter jurisdiction 6 Plaintiff first argues that the Court lacks subject matter jurisdiction because the prior 7 exclusive jurisdiction doctrine bars this Court from exercising jurisdiction over the properties at 8 issue when the Superior Court has already exercised jurisdiction over the same properties. (Dkt. 9 No. 9 at 7.) But “[t]he doctrine of prior exclusive jurisdiction applies to a federal court’s 10 jurisdiction over property only if a state court . . . retains [] jurisdiction in a separate, concurrent 11 proceeding.” Sexton v. NDEX W., LLC, 713 F.3d 533, 537 (9th Cir. 2013) (emphasis added). 12 The Superior Court has not done so here. 28 U.S.C. § 1446 (d) (“after the filing of [a] notice of 13 removal . . . the State court shall proceed no further unless and until the case is remanded.”). 14 Because Plaintiff has not identified any concurrent proceeding with jurisdiction over the 15 properties, the Court finds that the prior exclusive jurisdiction doctrine does not apply here. 16 2. Timeliness 17 Plaintiff also argues that removal was untimely, occurring 74 days after service of the 18 original complaint and 43 days after service of the amended complaint. (Dkt. No. 9 at 8 (citing 19 Sosa Decl., Ex. Nos. 4, 6).) The Court agrees. Federal law requires removal to be made within 20 30 days of receipt of an initial pleading “setting forth the claim for relief upon which such action 21 or proceeding is based.” 28 U.S.C. § 1446 (b). If the action is not removable based on the initial 22 pleadings, the removal is proper if commenced within “thirty days after receipt by the defendant [24] 1 . . . of a copy of an amended pleading, motion, order or other pleading from which it may first be 2 ascertained that the case is one which is or has become removable.” Id. 3 The original complaint asserted claims for partition and quiet title over two properties, 4 described in the complaint as collectively worth $199,000.00 (Sosa Decl., Ex. 3, ¶¶2.5 2.6), but 5 Defendant claims it was not until she received the lis pendens—which did not list the price of the 6 properties at all—that she realized Plaintiff “claimed ownership of the entirety of the King 7 County properties” and understood that the controversy concerned “a property worth more than 8 $75,000.” (Dkt. No. 17 at 2, 4.) The lis pendens was clearly not Defendant’s first opportunity to 9 ascertain that this matter was removable, 28 U.S.C. § 1446 (b), as the original complaint 10 contained all the information (and more) that Defendant now claims was only apparent from the 11 lis pendens. Removal was therefore untimely, and Plaintiff’s Motion for Remand is GRANTED. 12 B. Attorney Fees 13 Plaintiff seeks an award of attorney’s fees in the amount of $5,100.00 pursuant to 28 14 U.S.C. § 1447 (c). (Dkt. No. 19, Second Declaration of Carlos M. Sosa (2d Sosa Decl.), ¶ 2.) 15 “[A]bsent unusual circumstances, attorney’s fees should not be awarded when the removing 16 party has an objectively reasonable basis for removal.” Martin v. Franklin Capital Corp., 546 17 U.S. 132, 136 (2005). “Conversely, when an objectively reasonable basis exists, fees should be 18 denied.” Id. “[R]emoval is not objectively unreasonable solely because the removing party’s 19 arguments lack merit, or else attorney’s fees would always be awarded whenever remand is 20 granted.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). 21 As discussed above, the Court finds Defendant’s argument regarding the timing of 22 removal unpersuasive. But the amount in controversy and diversity of the parties satisfy the [24] 1 diversity statute (see Sosa Decl., Ex. 3, ¶¶2.5 2.6), and Defendant therefore had a reasonable 2 ground for removal, if not a timely one. Plaintiff’s Motion for Attorney’s Fees is DENIED. 3 Conclusion 4 For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Remand and 5 REMANDS this case to King County Superior Court for all further proceedings. Plaintiff’s 6 request for attorney’s fees is DENIED. [7] 8 The clerk is ordered to provide copies of this order to all counsel. 9 Dated November 14, 2019. A [11] Marsha J. Pechman 12 United States District Judge