Christine Owen v. Adam Stokes ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTINE M. OWEN, No. 20-15129
Plaintiff-Appellee, D.C. No.
2:18-cv-01581-GMN-DJA
v. District of Nevada,
Las Vegas
ADAM STOKES; et al.,
MEMORANDUM*
Defendants-Appellants,
and
RAMZY P. LADAH,
Defendant.
On Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted March 11, 2021**
Las Vegas, Nevada
Before: NGUYEN and BENNETT, Circuit Judges, and HARPOOL,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
Christine Owen and Adam Stokes own Half Price Lawyers LLC (“HPL”).
Owen filed fifteen state law claims against Stokes, HPL, and others (collectively
“Stokes”) in state court, alleging that she had not received her share of HPL’s
profits under various contracts. Stokes removed the case, but the district court
granted Owen’s motion to remand and her motion for attorney’s fees based on
improper removal under 28 U.S.C. § 1447(c). Stokes appeals. We dismiss in part
and affirm in part.
1. Owen’s claims were subject to non-discretionary remand under 28
U.S.C. § 1447(c), and that remand order is not reviewable. 28 U.S.C § 1447(d)
(“An order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise . . . .”); see Stevens v. Brink’s Home Sec., Inc.,
378 F.3d 944, 948–49 (9th Cir. 2004) (explaining that only non-jurisdictional,
discretionary orders of remand are reviewable on appeal).
2. We review de novo whether the district court applied the correct legal
standard for an award of attorney’s fees, Moore v. Permanente Med. Grp., Inc.,
981 F.2d 443, 445–46 (9th Cir. 1992), and review the award of fees and costs for
abuse of discretion, Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th
Cir. 2008). “The court recognized that its decision turned on the reasonableness of
the attempted removal, which is the correct legal standard.” Id.; see Martin v.
Franklin Cap. Corp., 546 U.S. 132, 141 (2005) (“[C]ourts may award attorney’s
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fees under § 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal.”).
Stokes’s attempts to manufacture federal question jurisdiction were baseless
and premised on misrepresentation. First, Stokes argues that because “Half Priced
Lawyers” is a trademark, and because Owen and Stokes own securities in HPL,
any claims Owen may have necessarily arise under federal trademark and
securities law. But “the mere existence of [a] protected trade name . . . does not
provide a basis for federal jurisdiction.” Postal Instant Press v. Clark, 741 F.2d
256, 257 (9th Cir. 1984). Stokes has provided no authority suggesting that the rule
is any different in the securities context. Second, Stokes argues that Owen could
raise arguments based on federal law, but “[j]urisdiction may not be sustained on a
theory that the plaintiff has not advanced.” Merrell Dow Pharms. Inc. v.
Thompson, 478 U.S. 804, 809 n.6 (1986). Finally, Stokes’s arguments that the
parties’ Operating and Licensing Agreements create a federal question fail,
because neither document binds the parties to only federal law, and even if they
did, “[t]he parties have no power to confer jurisdiction on the district court by
agreement or consent.” Morongo Band of Mission Indians v. Cal. State Bd. of
Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). Moreover, Stokes’s arguments
to the district court and to this Court concerning the Agreements contain
misrepresentations. The district court therefore did not abuse its discretion in
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determining that there was no objectively reasonable basis for removal.
3. Stokes argues that the district court’s fee award in the amount of
$8,520.00 was excessive. To the contrary, the district court properly applied a
reasonable hourly rate to the hours Owen’s counsel spent on federal litigation,
except those hours spent opposing Stokes’s motion to compel arbitration because
that motion would have been filed whether the case was in state or federal court.
Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996) (describing the
“lodestar” method of determining fees). The amount of the award was not an
abuse of discretion.
DISMISSED IN PART AND AFFIRMED IN PART.
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