Gray v. CTP Funding
| Decision Date | 12 April 2023 |
| Docket Number | 2:23-CV-0006-JAG |
| Parties | MICHELLE R. GRAY, Plaintiff, v. CPT FUNDING, Defendant. |
| Court | U.S. District Court — District of Washington |
ORDER ON MOTIONS
BEFORE THE COURT are Defendant's Motion to Dismiss for Improper Venue or to Transfer Venue to Arizona, ECF No. 3 Plaintiff's Motion to Remand Stay Notice an Appeal Petition, ECF No. 6, Plaintiff's Motion for Appointment of Pro Bono Counsel, ECF No. 5, and Plaintiff's Motion to Obtain Electronic Case Filing Authorization, ECF No. 15. Defendant requests that the Court dismiss the case or, in the alternative, transfer jurisdiction to the District of Arizona where the parties have litigated the same/similar issues previously. Plaintiff asks that the Court remand the case back to Spokane Superior Court to allow her to appeal the removal to Federal Court.
The parties presented oral argument on March 29, 2023. Plaintiff appeared pro se and Defendant was represented by Nicholas Kovarik. All parties appeared telephonically. The Court has considered the pending motions, the file in this matter, and the arguments of the parties, and is fully informed. This Order memorializes the Court's findings stated during the hearing.
Plaintiff originally filed suit in Spokane County Superior Court alleging several causes of action arising from the foreclosure of real property in South Carolina following default on a loan issued by Defendant. The causes of action include several federal claims as well as some arising in tort and possibly contract law. The Complaint cites to federal statutes, Delaware statutes, as well as generally mentioning tort and contract law. Defendant removed the case to federal court on January 6, 2023. ECF No. 1.
The federal removal statute generally provides as follows:
Except as otherwise expressly provided by Act of Congress any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a). The right to remove a case lies solely with the Defendant. Am. Int'l Underwriters (Philippines), Inc. v. Cont'l Ins. Co., 843 F.2d 1253, 1255 (9th Cir. 1988). A Plaintiff, however, may seek remand to state court if removal was improper. 28 U.S.C § 1447(c). The Ninth Circuit “strictly construe[s] the removal statute against removal jurisdiction . . . Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal citations omitted). An improperly removed case may be remanded to state court:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded The State court may thereupon proceed with such case.
28 U.S.C. § 1447(c).
Any grounds for remand beyond lack of jurisdiction must be raised by the party seeking remand. Corona-Contreras v. Gruel, 857 F.3d 1025, 1029 (9th Cir. 2017) (). The Fifth Circuit “defined ‘any defect in removal procedure' as ‘all non-jurisdictional defects existing at the time of removal.'” Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1545-46 (5th Cir. 1991). However, the court must remand sua sponte if the district court lacks subject matter jurisdiction. Geweke Ford v. St. Joseph's Omni Preferred Care Inc., 130 F.3d 1355, 1358 (9th Cir. 1997), see also Kelton Arms Condominium Owners Ass.n, Inc. v. Homestead Ins. Co., 346 F.3d 1190 (9th Cir. 2003).
Plaintiff argues in her motion to remand that defendant “improvidently and without jurisdiction” removed the case from state court. The Court finds, however, that removal in this case was proper.
Defendant asserts federal question jurisdiction.[1]United States district courts have original federal-question jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. In her Complaint, Plaintiff asserts claims under the Dodd-Frank Act, specifically citing to several federal statutes including 15 U.S.C. §§ 1639, 1640, and 12 U.S.C. §§ 5201, 5219. Alleged violations of federal lending statutes confer federal question jurisdiction. See e.g. Peterson v. Wells Fargo Bank, 556 F.Supp. 1100, 1105-06. For the remainder of the claims the Court exerts supplemental jurisdiction pursuant to 28 U.S.C. § 1367 because “all other claims are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367. Additionally, though Plaintiff appears to suggest that the Washington State courts should have the opportunity to preside over state statutory claims, Plaintiff's Complaint is devoid of references to the Revised Code of Washington. Plaintiff raises no other alleged defects with removal.
In the alternative, Plaintiff appears to request that the Court stay the proceedings, including any decision on Defendant's pending motion, until appeal proceedings are complete in state court addressing removal. Defendant, however, filed a letter from the Washington State Supreme Court documenting that there is no pending appeal. ECF No. 11-3. Although a facially defective attempt at removal is not an automatic divestment of the state court's jurisdiction, Defendant has demonstrated compliance with the statutory removal requirements, so pursuit of appeal in state court will be futile. See Booth v. Stenshoel, 96 Wash.App. 1019 (1999).
Having decided that removal to this Court was proper, the Court now turns to Defendant's motion to either dismiss or transfer venue. Plaintiff bears the burden of establishing proper venue. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.1979). The federal venue statute provides for proper venue in the following three instances:
28 U.S.C. § 1391(b). The statues further provides the following with regard to residency:
For all venue purposes . . . an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question . . .
28 U.S.C. § 1391(c)(2). Additionally, corporate defendants reside “in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question.” 28 U.S.C. § 1391(c)(2).
Thus, to establish proper venue, Plaintiff must demonstrate that this court either maintains general or specific jurisdiction over the Defendant. Id., see also Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004). “[T]he defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). “[I]t is the defendant, not the plaintiff or third parties, who must create contacts with the forum State.” Walden v. Fiore, 571 U.S. 277, 134 S.Ct. 1115, 1121 (2014).
Here Plaintiff has not established that venue is proper. Defendant is not a resident of the Eastern District of Washington and Plaintiff provided no evidence supporting venue in the Eastern District of Washington. Rather, Defendant demonstrated that CTP Funding, LLC...
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