MARGARET M. MORROW, Judge.
On April 17, 2013, Andrew and Karen Horne (collectively "plaintiffs") filed a complaint in state court against Wells Fargo Bank, N.A. ("Wells Fargo") alleging various state law violations arising from the foreclosure of residential property located in Woodland Hills, California ("property").
The "opportunities for legitimate ex parte applications are extremely limited." In re Intermagnetics America, Inc., 101 B.R. 191, 193 (C.D.Cal.1989). See also Mission Power Engineering Co. v. Continental Casualty Co., 883 F.Supp. 488, 489 (C.D.Cal.1995) (stating that to be proper, an ex parte application must demonstrate that there is good cause to allow the moving party to "go to the head of the line in front of all other litigants and receive special treatment"). As the court in Intermagnetics stated:
The use of such a procedure is justified only when (1) there is a threat of immediate or irreparable injury; (2) there is danger that notice to the other party may result in the destruction of evidence or the party's flight; or (3) the party seeks a routine procedural order that cannot be obtained through a regularly noticed motion (i.e., to file an overlong brief or shorten the time within which a motion may be brought). Id.
Plaintiffs argue that the proximity of a nonjudicial foreclosure sale of their property renders the relief requested in their ex parte application proper because once the case is remanded, they intend to
Plaintiffs, however, do not seek injunctive relief in their ex parte application. Instead, they seek an order remanding the case to state court so they can then pursue injunctive relief in their preferred forum. Plaintiffs identify no reason why a change of venue is necessary to prevent immediate or irreparable injury.
Courts have, however, granted ex parte applications to remand in cases where jurisdiction is lacking. "A suit may be removed to federal court under 28 U.S.C. § 1441(a) only if it could have been brought there originally." Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir.1987); see Colfin A1-CA4 LLC v. Clark, No. EDCV 13-1162-CAS (SPx), 2013 WL 3967656, *1-2 (C.D.Cal. Aug. 1, 2013) (granting plaintiff's ex parte application to remand to state court because defendant's removal was untimely and the court lacked subject matter jurisdiction); Federal Nat. Mortg. Ass'n v. Bravo, No. CV 12-10375-CAS-(Ex), 2013 WL 210198, *1 (C.D.Cal. Jan. 17, 2013) (granting plaintiff's ex parte application to remand to state court because the court lacked subject matter jurisdiction); U.S. Bank Nat. Ass'n v. Gutierrez Hernandez, No. SACV 10-01508-CJC(MLGx), 2010 WL 4054451, *2 (C.D.Cal. Oct. 14, 2010) (same).
Here, defendant properly removed the case because plaintiffs alleged a federal claim under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605 et seq.
Plaintiffs contend nonetheless that the court should remand the action because after Wells Fargo removed the case, they filed a second amended complaint that deleted the federal claim.
The "justification [for discretionary supplemental jurisdiction] lies in considerations of judicial economy, convenience and fairness to litigants." United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). See also Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("the doctrine of pendent jurisdiction ... is a doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the manner that most sensibly accommodates a range of concerns"). In 1990, Congress enacted 28 U.S.C. § 1367 to codify the standard governing supplemental jurisdiction in civil actions commenced after December 1, 1990. One circumstance in which § 1367(c)(3) permits the "district court[][to] decline to exercise supplemental jurisdiction over a [state-law] claim" is "if ... the district court has dismissed all claims over which it has original jurisdiction."
In Gibbs, the Supreme Court noted two situations in which the factors of "judicial economy, convenience and fairness to litigants" will generally weigh strongly in favor of the dismissal of supplemental state law claims. See Gibbs, 383 U.S. at 726-27,
The Gibbs Court also stated that "if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals." Gibbs, 383 U.S. at 726-27, 86 S.Ct. 1130 (emphasis omitted). This holding is reflected in § 1367(c)(2), which authorizes dismissal when state law claims substantially predominate over the claim or claims falling within the court's original jurisdiction.
Wells Fargo contends the case should not be remanded. It asserts that plaintiffs are engaged in "nothing short of forum shopping as [they] would rather have an ex parte application for a temporary restraining order heard in the state court rather than in this Court."
The Ninth Circuit, however, has treated forum shopping in the context of removal and remand somewhat differently. See Baddie v. Berkeley Farms, Inc., 64 F.3d 487, 491 (9th Cir.1995) ("Filing federal claims in state court is a legitimate tactical decision by the plaintiff: it is an offer to the defendant to litigate the federal claims in state court. The defendant is not obligated
In reliance on Baddie, several courts in this circuit have concluded that allegations of forum-shopping do not preclude remand where a defendant fails to raise other viable concerns. See Gulinson v. Bank of Am., NA, No. CV 12-495-PHX-JAT, 2012 WL 1609644, *2 (D.Ariz. May 7, 2012) (granting leave to amend, remanding, and observing that "even if Defendant's assertion that `Plaintiff's proposed amendments are a purposeful effort to avoid federal jurisdiction tantamount to forum shopping,' is true, such alleged forum shopping does not come without a price, because by voluntarily abandoning her federal claims, Plaintiff has agreed that this Court can dismiss such claims with prejudice" (internal citations omitted)); Deomampo v. Wells Fargo Bank, No. C 09-1762 PJH, 2009 WL 1764533, *2 n. 2 (N.D.Cal. June 19, 2009) ("The court notes that while the request for remand may seem to smack of forum shopping, a plaintiff does not engage in impermissible forum shopping where he amends the complaint after removal to eliminate a federal claim in order to preserve the right to litigate in state court," citing Baddie, 64 F.3d at 491); East Bay Drivers Ass'n v. Kaur, No. C03-1241 SI, 2003 WL 21439216, *2 (N.D.Cal. June 9, 2003) (granting plaintiff's motion to amend and remand, and stating that "[a] plaintiff is entitled to file state and federal claims in a state court and a defendant is entitled to remove the action to federal court.... Furthermore, the plaintiff is entitled to settle or dismiss certain claims with leave of the court," and seek remand); Chow, No. C-98-4619 PJH, 1999 WL 144873, *5 N.D. Cal. Feb. 22, 1999) (granting plaintiff's motion to amend and remand, and stating that "[e]xceptional circumstances or other compelling reasons under section 1367(a) ... are not apparent from the pleadings. Moreover, the court does not find that plaintiff has attempted to manipulate the forum. The court finds rather that plaintiff has made a strategic decision to concentrate on her state law claims in an attempt to have them heard in state court. This is not improper").
The court does not condone plaintiffs' attempt to secure a remand by filing an improper ex parte application. The question of the discretionary exercise of supplemental jurisdiction, however, has now come to the court's attention. Addressing that issue, it concludes that it is in the best interests of the parties to resolve whether the continued exercise of jurisdiction is appropriate without requiring the parties to file additional pleadings, i.e., a regularly noticed motion to remand and opposition thereto.
Plaintiffs initially filed this action in state court. They then filed a first amended complaint that included a federal claim. Wells Fargo removed the action on the basis of the federal claim asserted in the first amended complaint. At that point, exercising supplemental jurisdiction over the state law claims might well have been appropriate since the state claims were based on the same facts and circumstances as the federal claim. See 28 U.S.C. § 1367(a). Because plaintiffs subsequently filed a second amended complaint eliminating the federal claim, however, the cause of action on which the court's jurisdiction rested is now gone. Under § 1367(c)(3),
Because only state law claims remain, moreover, they clearly predominate over any federal issues; as a result, principles of comity also suggest that remand is appropriate. See Millar, 236 F.Supp.2d at 1119 (noting that "[t]he factor of comity also weighs strongly in favor of remand" when "plaintiff now proceeds exclusively on his state claims"); see also Danner v. Himmelfarb, 858 F.2d 515, 524 (9th Cir. 1988) (noting that plaintiff "does not dispute, nor could he, that principles of comity will be well-served by allowing the state courts to resolve claims solely of state law"); Bay Area Surgical Mgmt., LLC v. United Healthcare Ins. Co., No. C 12-01421 SI, 2012 WL 3235999, *5 (N.D.Cal. Aug. 6, 2012) ("Here, the federal claims were eliminated at the pleading phase, and in the interests of judicial economy, convenience, fairness, and comity, the Court declines to exercise supplemental jurisdiction and remands the remaining claims to state court" (internal citations omitted)); Marcos v. Equity One Lenders Grp., No. C11-04000 HRL, 2011 WL 6225273, *2 (N.D.Cal. Dec. 14, 2011) ("Here, the court finds remand appropriate. This case is in its early stages. Few federal resources have been expended in determining the sufficiency of the pleadings as to the sole federal claim. The court finds no compelling reason to retain jurisdiction over the remaining state law claims, when the state courts are equally competent and more familiar with the governing law. Nor does this court find that litigating here is any more convenient to the parties than litigating in the state court"). In fact, even before dismissal of the RESPA claim, state law claims predominated. This provides an additional basis for declining to exercise jurisdiction over plaintiffs' state law claims. See Gibbs, 383 U.S. at 726-27, 86 S.Ct. 1130
Because principles of judicial economy and comity weigh in plaintiffs' favor, however, the court cannot conclude that plaintiffs' efforts to dictate the forum where this litigation will proceed, in and of itself, require the exercise of jurisdiction over the remaining state law claims. Although remand is not mandatory, the Ninth Circuit in Acri, 114 F.3d 999, emphasized the Supreme Court's admonition that, "in the usual case in which all federal-law claims are eliminated before trial, the balance of all factors ... will point toward declining to exercise jurisdiction over the remaining state-law claims." Id. at 1001 (citing Carnegie-Mellon, 484 U.S. at 350 n. 7, 108 S.Ct. 614). Because the court can identify no other factor that favors retention of the supplemental claims, it grants plaintiffs' motion to remand.
For the reasons stated, the court declines to exercise supplemental jurisdiction over plaintiffs' state law claims. The court therefore directs the clerk to remand the action forthwith to Los Angeles Superior Court.
