1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 JUDITH DOLLAGA, Case No. 20-cv-07472-JSC

10 Plaintiff, ORDER RE: GRANTING PLAINTIFF’S 11 v. MOTION TO REMAND

12 SPECIALIZED LOAN SERVICING LLC, Re: Dkt. Nos. 7, 9 et al., 13 Defendants.

14 15 Judith Dollaga filed this civil action in the Alameda County Superior Court alleging 16 violations of state law in connection with the servicing of her home loan. Defendants thereafter 17 removed the action to this Court based on federal question jurisdiction.1 Plaintiff’s motion to 18 remand and Defendants’ motion to dismiss under Rule 12(b)(6) are now pending before the Court. 19 (Dkt. Nos. 7, 9.) After carefully considering the parties’ briefs and the relevant legal authority, the 20 Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), VACATES the 21 December 17, 2020 hearing, and GRANTS Plaintiff’s motion for remand. Plaintiff’s complaint 22 includes only state law claims such that there is no basis for federal question jurisdiction. 23 Defendants’ motion to dismiss is therefore DENIED AS MOOT. 24 BACKGROUND 25 Plaintiff filed this action in the Alameda County Superior Court on August 31, 2020. (Dkt. 26 27 1 No. 1-1. 2) Plaintiff’’ complaint asserts nine claims under state law. Defendant Specialized Loan 2 Servicing LLC was served by personal service on September 22, 2020. (Dkt. No. 10 at ¶ 1; Dkt. 3 No. 10-1.) Defendant Gulf Harbor Investments Corporation was served by personal service the 4 following day. (Dkt. No. 10 at ¶ 3; Dkt. No. 10-2.) On October 23, 2020, Defendants filed a 5 notice of removal, removing the action to this Court based on federal question jurisdiction. (Dkt. 6 No. 1.) Less than a week later, Defendants moved to dismiss under Federal Rule of Civil 7 Procedure 12(b)(6). (Dkt. No. 7.) Plaintiff thereafter filed the underlying motion to remand and 8 an opposition to the motion to dismiss. (Dkt. Nos. 9, 12.) Both motions are now fully briefed. 9 DISCUSSION 10 “Federal courts are courts of limited jurisdiction. They possess only that power authorized 11 by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am.,

, 377 12 (1994). “The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28

and 1332. Section 1331 provides for ‘federal question’ jurisdiction, § 1332 for 14 ‘diversity of citizenship’ jurisdiction.” Arbaugh v. Y&H Corp.,

(2006) (internal 15 brackets omitted). 16 “Only state-court actions that originally could have been filed in federal court may be 17 removed to federal court by the defendant.” Caterpillar Inc. v. Williams,

, 392 18 (1987). A defendant seeking removal to federal court “bears the burden of establishing that 19 removal is proper,” and the “removal statute is strictly construed against removal jurisdiction.” 20 Provincial Gov’t of Marinduque v. Placer Dome, Inc.,

(9th Cir. 2009). 21 “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first 22 instance.” Gaus v. Miles,

(9th Cir. 1992); see also

(c) (“If at 23 any time before final judgment it appears that the district court lacks subject matter jurisdiction, 24 the case shall be remanded.”). 25 Defendants’ Notice of Removal alleges that the Court has subject matter jurisdiction over 26 this action pursuant to

because “the complaint alleges claims for relief that arise 27 1 under the Federal Fair Debt Collection Practices Act.” (Dkt. No. 1 at ¶ 4.) In opposition to the 2 motion to remand, Defendants contend that in addition to federal question jurisdiction, removal 3 was proper based on diversity jurisdiction. (Dkt No. 14 at 8-12.) Defendants, however, have not 4 sought to amend the Notice of Removal to add this basis for removal, nor could they as the 30-day 5 window for doing so has run. See O’Halloran v. Univ. of Washington,

, 1381 (9th 6 Cir. 1988) (“The petition cannot be amended to add a separate basis for removal jurisdiction after 7 the thirty day period.”); see also ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. 8 Quality of Montana,

(9th Cir. 2000) (citing 16 MOORE’S FEDERAL PRACTICE 9 § 107.30[2][a][iv] (“[A]mendment may be permitted after the 30–day period if the amendment 10 corrects defective allegations of jurisdiction, but not to add a new basis for removal 11 jurisdiction.”)). There is no suggestion here that Defendants are seeking to correct defective 12 allegations as opposed to arguing a different basis for jurisdiction in the event the first basis is 13 found unavailing. The Court will not consider Defendants’ additional basis for removal offered 14 for the first time in their opposition brief. See Rader v. Sun Life Assur. Co. of Canada,

Supp. 2d 1191, 1196 (N.D. Cal. 2013) (“The notice of removal cannot be amended to add new 16 bases for removal after the thirty day removal period has run, nor can a defendant present new 17 grounds for removal for the first time in opposition to a motion for remand.”). 18 A. Federal Question Jurisdiction 19 Federal question jurisdiction under Section 1331 requires a civil action to arise “under the 20 Constitution, laws, or treaties of the United States.”

. “Ordinarily, the existence 21 of federal question jurisdiction is determined from the face of the complaint.” Ultramar Am. Ltd. 22 v. Dwelle,

, 1414 (9th Cir. 1990). Thus, “[u]nder the longstanding well-pleaded 23 complaint rule, ... a suit arises under federal law only when the plaintiff’s statement of his own 24 cause of action shows that it is based upon [federal law].” Vaden v. Discover Bank,

, 25 60 (2009) (internal quotation marks and citation omitted) (alteration in original). A suit is based on 26 federal law if “federal law creates the cause of action or ... the plaintiff’s right to relief necessarily 27 depends on resolution of a substantial question of federal law.” Franchise Tax Bd. of State of Cal. 1 federal question jurisdiction is lacking because the complaint pleads only state law causes of 2 action. The Court agrees. 3 Plaintiff’s complaint seeks damages and injunctive relief for: (1) breach of contract; (2) 4 breach of the implied covenant of good faith and fair dealing; (3) intentional interference with 5 contract; (4) unfair business practices,

; (5) fraud; (6) negligence; 6 (7) false promise; (8) negligent misrepresentation; and (9) violation of the Rosenthal Fair Debt 7 Collection Practices Act. (Dkt. No. 1-1.) Defendants’ Notice of Removal contends that federal 8 question exists because “the complaint alleges claims for relief that arise under the Federal Fair 9 Debt Collection Practices Act.” (Dkt. No. 1 at ¶ 4.) Defendants do not specify which claim, but 10 the parties agree that Defendants are referring to Plaintiff’s Rosenthal Act claim which does refer 11 to the FDCPA—the Fair Debt Collection Practices Act. (Dkt. No. 1-1 at ¶¶ 153, 156, 157.) 12 While “[t]he Rosenthal Act mimics or incorporates by reference the FDCPA’s 13 requirements[] and makes available the FDCPA’s remedies for violations,” see Riggs v. Prober & 14 Raphael,

(9th Cir. 2012), courts in the Ninth Circuit have consistently 15 rejected the argument that mere reference to the FDCPA in the context of a Rosenthal Act claim 16 confers federal question jurisdiction. See Ghalehtak v. Fay Serv. LLC, No. 18-cv-02306-PJH, 17

, at *2 (N.D. Cal. June 4, 2018) (collecting cases); see also Nevada v. Bank of 18 Am. Corp.,

(9th Cir. 2012) (finding action was not removable on federal 19 question grounds where complaint referenced violations of the FDCPA only in the context of its 20 claim under Nevada’s Deceptive Trade Practices Act). Defendants have not cited any cases 21 finding otherwise and this Court finds that the district court caselaw on this issue is on point and 22 persuasive, especially given that the “removal statute is strictly construed against removal 23 jurisdiction.” See Placer Dome, Inc.,

. 24 Accordingly, federal question jurisdiction does not exist and thus subject matter 25 jurisdiction is lacking. 26 B. Attorneys’ Fees 27 Plaintiff seeks $6,9995 in attorneys’ fees under

(c). District courts have 1 payment of just costs and any actual expenses, including attorney fees, incurred as a result of 2 removal.”

(c); see also Martin v. Franklin Capital Corp.,

, 139 3 (2005) (noting that “an award of fees under § 1447(c) is left to the district court’s discretion”). 4 “The appropriate test for awarding fees under § 1447(c) should recognize the desire to deter 5 removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, 6 while not undermining Congress’ basic decision to afford defendants a right to remove as a 7 general matter, when the statutory criteria are satisfied.” Martin,

. Thus, “[a]bsent 8 unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the 9 removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an 10 objectively reasonable basis exists, fees should be denied.” Id. at 141. 11 The Court declines to award attorneys’ fees here. Although ultimately unpersuasive, 12 Defendants’ arguments are not so objectively unreasonable as to warrant an award of attorneys’ 13 fees. See Lussier v. Dollar Tree Stores, Inc.,

(9th Cir. 2008) (noting that 14 while “[t]here is no question that [defendant’s] arguments were losers[,] ... removal is not 15 objectively unreasonable solely because the removing party’s arguments lack merit, or else 16 attorney’s fees would always be awarded whenever remand is granted”). While district courts 17 have declined to find federal subject matter jurisdiction based on the Rosenthal Act’s 18 incorporation in part of the requirements and remedies of the FDCPA, there is no Ninth Circuit 19 case which so holds and Plaintiff has not pointed to a single case awarding attorneys’ fees under 20 these circumstances. See Yhudai v. Mortg. Elec. Registration Sys., Inc., No. 21 CV1505035MMMJPRX,

, at *9 (C.D. Cal. Oct. 2, 2015) (declining to award 22 attorneys’ fees where defendants removed based on a similar theory regarding federal question 23 jurisdiction over a Rosenthal Act claim); Roop v. Citimortgage, Inc., No. 12-00640CJC (FFMX), 24

, at *2 (C.D. Cal. June 14, 2012) (same). 25 CONCLUSION 26 For the reasons stated above, Plaintiff’s motion to remand is GRANTED. Defendants’ 27 motion to dismiss is DENIED AS MOOT. This action is remanded to the Alameda County 1 This Order disposes of Docket Nos. 7 and 9. 2 IT IS SO ORDERED. 3 Dated: December 11, 2020 Sut ne 5 JACQUELINE SCOTT CORFEY 6 United States Magistrate Judge 7 8 9 10 11 12

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