1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAE-LIN MENDOZA, Case No. 21-cv-08632-TSH

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. REMAND

10 GREGORY J. YU, Re: Dkt. No. 7 11 Defendant.

12 13 I. INTRODUCTION 14 Plaintiff Mae-Lin Mendoza moves for an order remanding this action to the San Mateo 15 County Superior Court. ECF No. 7. Defendant Gregory J. Yu filed an Opposition (ECF No. 14) 16 and Mendoza filed a Reply (ECF No. 19). The Court finds this matter suitable for disposition 17 without oral argument and VACATES the January 27, 2022 hearing. See Civ. L.R. 7-1(b). 18 Having considered the parties’ positions, relevant legal authority, and the record in this case, the 19 Court GRANTS Mendoza’s motion for the following reasons.1 20 II. BACKGROUND 21 On October 14, 2019, Mendoza and her mother, Grace Yu, signed the Living Support Plan 22 for Mason Yu, Jr. with Mendoza’s brother, Gregory Yu. Compl. ¶ 1, ECF No. 1-1. Pursuant to 23 Paragraph 4 of the Living Support Plan, $350,000 was to be put into a Morgan Stanley account by 24 Grace for the benefit of her son Mason. Id. ¶ 2. Mason was to receive $2,500 from October 2019 25 to September 2020, with increases of 2% each year thereafter. Id. To effectuate the terms of the 26 Living Support Plan, Grace transferred $350,000 to the Morgan Stanley account, with title held by 27 1 Grace, Mae-Lin Mendoza and Gregory Yu as joint tenants. Id. ¶ 3. 2 Grace passed away on March 17, 2021. Id. ¶ 4. At the time of her death, Grace, Mae-Lin 3 and Gregory were still listed as the joint tenants of an account at Morgan Stanley. Id. ¶ 5. After 4 the death of Grace, Morgan Stanley required Mae-Lin and Greg to open a new account, removing 5 Grace from title to the account. Id. ¶ 6. However, Gregory refused to complete the necessary 6 paperwork and the Morgan Stanley account was frozen. Id. 7 On September 9, 2021, Mendoza filed this case in San Mateo County Superior Court, 8 alleging she has been unable to make the distributions to Mason because of Yu’s refusal to 9 cooperate in creating a new account, and that she is unable to access the funds without Yu’s 10 approval and consent. Id. ¶ 7. Mendoza requested the court: (1) confirm the Living Support Plan 11 is a valid Trust under California law; (2) instruct Yu to convey the Morgan Stanley account to her 12 as Trustee of the Living Support Plan; (3) find Yu liable for damages under California Probate 13 Code section 859; and (4) instruct Yu to pay her attorney’s fees and costs. Id. at 6. 14 On November 5, 2021, Yu removed the case to this Court based on diversity jurisdiction 15 under

, stating that Mendoza is a citizen of Texas and he is a citizen of 16 California. Not. of Removal ¶ 5, ECF No. 1. The notice includes a Notice and Acknowledgment 17 of Receipt of the complaint signed by Gregory J. Yu on October 8, 2021.

. 18 Mendoza filed the present motion on December 3, 2021, arguing that removal was 19 improper under

(b)(2), which provides that a case cannot be removed to federal 20 court by a defendant who is a citizen of the state in which the state court action is brought. 21 Mendoza also argues the case falls within the probate exception to federal jurisdiction. 22 III. LEGAL STANDARD 23 Federal courts are courts of limited jurisdiction and possess only that jurisdiction as 24 authorized by the Constitution and federal statute. Kokkonen v. Guardian Life Ins. Co. of Am., 25

(1994). Under the diversity statute,

, a federal district court 26 has original jurisdiction when the parties are completely diverse and the amount in controversy 27 exceeds $75,000. A defendant may remove an action to federal court if the diversity and amount 1 “If at any time before final judgment it appears that the district court lacks subject matter 2 jurisdiction, the case shall be remanded.”

(c). The Ninth Circuit has held that 3 removal “should be construed narrowly in favor of remand to protect the jurisdiction of state 4 courts.” Harris v. Bankers Life & Cas. Co.,

(9th Cir. 2005). A federal court’s 5 jurisdiction “must be rejected if there is any doubt as to the right of removal,” and a “defendant 6 always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc.,

, 7 566 (9th Cir. 1992). 8 IV. DISCUSSION 9 A. Forum Defendant Rule 10 Although the parties raise other arguments in their papers, the dispositive issue here is 11 whether the forum defendant rule requires remand.

(b)(2), often referred to as 12 the “forum defendant rule,” limits a defendant’s ability to remove a case by providing that “[a] 13 civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of 14 this title may not be removed if any of the parties in interest properly joined and served as 15 defendants is a citizen of the State in which such action is brought.” The Ninth Circuit has held 16 that this rule “confines removal on the basis of diversity jurisdiction to instances where no 17 defendant is a citizen of the forum state.” Lively v. Wild Oats Markets, Inc.,

, 939-40 18 (9th Cir. 2006). The rationale of the forum defendant rule is that “[r]emoval based on diversity 19 jurisdiction is intended to protect out-of-state defendants from possible prejudices in state court” 20 and that “[t]he need for such protection is absent . . . in cases where the defendant is a citizen of 21 the state in which the case is brought.”

. 22 Here, Yu states in his notice of removal that “[t]his is a civil action over which this Court 23 has original jurisdiction under

. . . because it is a civil action between citizens of 24 different states,” and that he is a citizen of California. Not. of Removal ¶¶ 1, 3. There is also no 25 dispute that Yu was properly served prior to removal, as the notice includes a Notice and 26 Acknowledgment of Receipt signed by Gregory J. Yu on October 8, 2021.

. Thus, as Yu 27 is a citizen of the state in which the state court action was brought, § 1441(6)(2) appears to 1 Yu does not dispute that the forum defendant rule applies to this case. Instead, he argues it 2 is a “procedural technicality” and is a “waivable limitation” because a plaintiff must “proceed with 3 a motion to remand if filed within 30 days of remand [sic].” Opp’n at 5. Yu correctly points out 4 that the Ninth Circuit has held the forum defendant rule “procedural” rather than “jurisdictional,” 5 such that a violation of the rule is “a waivable defect in the removal process.” Lively,

935-36. As a violation of the forum defendant rule thus represents a “defect other than lack of 7 subject matter jurisdiction,” a motion to remand based on the rule is subject, most notably, to the 8 requirement in § 1447(c) that the motion “must be made within 30 days after the filing of the 9 notice of removal.”

(c); see also Lively,

(concluding that 10 Congress, in § 1447(c), “sought to ensure that even the ‘more substantive’ removal defects, such 11 as § 1441(b) violations, were subject to the 30-day time limit”). However, even taking Yu’s 12 argument at face value, Mendoza timely filed her motion with 30 days of removal and therefore 13 did not waive her ability to remand this matter. See ECF Nos. 1 (Notice of Removal, filed 14 11/5/2021); 7 (Mot., filed 12/3/2021). Accordingly, under the plain language of § 1441(b)(2), 15 removal was improper. 16 B. Attorney’s Fees 17 Mendoza also moves for attorney’s fees and costs in the amount of $3,428.26 for her 18 efforts in opposing removal. Mot. at 2, Doyle Decl. ¶¶ 9-12, ECF No. 7-1. “An order remanding 19 the case may require payment of just costs and any actual expenses, including attorney fees, 20 incurred as a result of the removal.”

(c). District courts have wide discretion in 21 deciding to award fees. Martin v. Franklin Cap. Corp.,

(2005). “Absent 22 unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the 23 removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an 24 objectively reasonable basis exists, fees should be denied.” Id. 25 The Court can find no objectively reasonable basis for Yu to seek removal here, as it was 26 clearly barred by the forum defendant rule. Prior to filing the motion to remand, Mendoza’s 27 attorney reached out to Yu, informing him of the forum defendant rule and that his removal was 1 state court, Mendoza would seek remand to state court and seek attorney’s fees pursuant to 28

(c). Doyle Decl., Ex. 1. Despite being a licensed attorney,2 Yu never responded to 3 this correspondence. Further, in his opposition, Yu does not present any authority as to why the 4 forum defendant rule does not apply in this case. Even though the rule is merely procedural and 5 thus waivable, “it would flout the forum defendant rule if the Court were to condone in-state 6 defendants baselessly removing to federal court in the hopes that a plaintiff will waive its right to 7 remand. Neither the removal statute nor this Court countenances such wasteful gambling.” 8 Everest Sys. Co. v. Platinum Roofing, Inc.,

, at *2 (N.D. Cal. July 26, 2019) 9 (granting motion to remand based on forum defendant rule and awarding attorney’s fees); see also 10 Open Text Inc. v. Beasley,

, at *6-7 (N.D. Cal. July 30, 2021) (awarding 11 attorney’s fees where plaintiff made repeated efforts to have defendant voluntarily remand case by 12 bringing the forum defendant rule to her attention, yet defendant “refused even to acknowledge the 13 issue”). Accordingly, the Court finds an award of attorney’s fees and costs is merited here. 14 Mendoza’s attorney, John Doyle, worked 7.6 hours in connection with the notice of 15 removal and motion to remand, at an hourly rate of $393.75, for a total of $2,992.50. Doyle Decl. 16 ¶¶ 4, 9. The Court finds both the time and hourly rate reasonable. See Magnoliadrhomes LLC v. 17 Kahn,

, at *3 (N.D. Cal. Aug. 2, 2021) (awarding $9,000 (12 hours @ 18 $750/hour) for successful motion to remand based on forum defendant rule); Everest,

3387951, at *2 (granting motion to remand and awarding $2,800 (8 hours @ $350/hour)); Open 20 Text,

, at *7 (granting motion to remand and awarding $7,786.00). Mendoza 21 also seeks reimbursement for the work of Doyle’s legal assistant, Allison V. Taylor, in the amount 22 of $33.75 (0.3 hours @ $112.50/hour). However, while Doyle states “I have been assisted in this 23 matter” by Taylor, the billing records submitted in support of his declaration show that Taylor 24 billed to: “Commence notice of motion to remand back to state court.” Doyle Decl. ¶ 10 & Ex. A. 25 The Court declines to award fees for this generalized billing entry. Doyle also states he 26 “anticipates incurring $402.00 to file this Motion,” yet provides no record to support this amount. 27 1 The Court therefore declines to award fees for this anticipated cost. Accordingly, the Court finds 2 an award of $2,992.50 appropriate. 3 Vv. CONCLUSION 4 For the reasons given above, the Court GRANTS Plaintiff Mae-Lin Mendoza’s motion to 5 || remand, as well as her request for attorney’s fees in the amount of $2,992.50. The Clerk of Court 6 shall remand this case to the Superior Court of San Mateo County, California. 7 IT IS SO ORDERED. 8 9 || Dated: January 3, 2022 10 7 LU \ : joy □ THOMAS S. HIXSON I United States Magistrate Judge a 12

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