Federal Judge Frances Tydingco Gatewood also authorized an attorney’s fee award in favor of the Retirement Fund, the plaintiffs.
Gatewood said the attorney’s fees will be determined upon receipt of evidence establishing the amount of reasonable attorney’s fees and costs that were incurred as a result of the removal of this action.
According to Gatewood, “The notice of removal was defective, and this court is duty-bound to remand this matter to the local court.”
Commonwealth Retirement Association board member Sapuro Rayphand filed a notice of removal as intervenor on Sept. 8, 2011.
Five days later, the Fund filed its motion to remand and for attorney’s fees.
“The court understands that Mr. Rayphand may be frustrated with the pace of the local Superior Court case, but frustration alone is not a basis for removal to a federal court. A cursory consideration of Ninth Circuit law would have shown that this attempt of removal was improper. Accordingly, the court finds an award for attorney’s fees is appropriate,” Gatewood said in her eight-page written order.
The court also said that Rayphand’s cross motion to strike is moot. There will be no further action taken regarding this motion, Gatewood said.
The Retirement Fund welcomes Gatewood’s decision, saying “it may now continue its efforts to collect and looks forward to moving forward with hearings that were delayed by Mr. Rayphand’s actions.”
The Fund, in a statement, said Gatewood found that Rayphand had filed the notice of removal pro se without the approval of the Commonwealth Retirement Association board and was neither a defendant nor an intervenor in the matter.
The Fund said, “Accordingly, it was improper for Mr. Rayphand to remove the matter from the Superior Court.”
The Fund also cited the court’s ruling that “the arguments that Mr. Rayphand raised regarding his right of removal is at odds with controlling Ninth Circuit and statutory authority. The Court finds that Mr. Rayphand’s notice of removal was unreasonable under the circumstances.”
“In fact, much of his argument for intervention is nonsensical and unrelated to the issues at hand,” the Fund added.
