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Montes v. Homeq Servicing

September 29, 2009

ANA MONTES, AN INDIVIDUAL, PLAINTIFF,
v.
HOMEQ SERVICING, A CORPORATION; GE MONEY MORTGAGE COMPANY, SUCCESSOR IN INTEREST TO WMC MORTGAGE CORP, A CORPORATION; WELLS FARGO, A NATIONAL ASSOCIATION; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., A CORPORATION; AND DOES 1 THROUGH 200, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Florence-marie Cooper, Judge United States District Court

ORDER REMANDING CASE TO SUPERIOR COURT

This matter is before the Court on the Court's September 1, 2009, Order to Show Cause (docket no. 7). The Court has read and considered Defendants' "Opposition/Response to the Court's Order to Show Cause Re: Remand." Plaintiff has filed nothing. For the reasons and in the manner set forth below, IT IS HEREBY ORDERED that this action be REMANDED to state court.

This matter arises out of a home mortgage loan transaction. Plaintiff alleges causes of action for: (1) "Set[ting] Aside [the] Trustee's Sale," alleging violations of CAL. CODE CIV. PROC. §§ 2924b(c) & 2923.5; (2) "To Cancel [the] Trustee's Sale," brought without reference to any statute, other than by reincorporating all preceding paragraphs; (3) "Quiet Title," brought under CAL. CODE CIV. PROC. §§ 762.10 & 762.20; (4) "Declaratory Relief," brought with reference to CAL. CODE CIV. PROC. § 2923.5; (5) and "Inducement of Breach of Fiduciary Duty," brought without reference to any statutory provisions.

I. Legal Standard

Absent diversity jurisdiction, a defendant may only remove a complaint filed in state court when "a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); see Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 933-34 (9th Cir.1994) (quoting Caterpillar). When a case is removed to federal court there is a strong presumption against federal jurisdiction, and the burden is on the defendant to prove that removal is proper. Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992) (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990)).

The removal statute is strictly construed, and any doubt about the right of removal is resolved in favor of remand. Gaus, 980 F.2dat 566 (citations omitted); see also Price Frieze, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir. 1999) (superseded by statute on other grounds, as recognized in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681-82 (9th Cir. 2006)); Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.2009) (citations omitted). If the removal is challenged by the court, the removing party must provide competent proof that removal jurisdiction is proper. Gaus, 980 F.2d at 567. The Court may "demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence." Id. "Subject matter jurisdiction may not be waived, and, indeed, ... the district court must remand if it lacks jurisdiction." Kelton Arms Condominium Owners Association, Inc. V. Homestead Insurance Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (citing Sparta Surgical Corp. v. Nat'l Ass'n Securities Dealers, Inc.,159 F.3d 1209, 1211 (9th Cir. 1998) (emphasis added).

A defendant may remove a civil action from State court to federal court if the claim could have initially been brought in the district court. 28 U.S.C. § 1441(a). In general, the notice of removal must be filed with "a copy of all process, pleadings, and orders" served on the removing defendant in the action. Id.

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in the court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b); see also U.S. ex rel. Walker v. Gunn, 511 F.2d 1024, 1025 (9th Cir. 1975) (finding removal was untimely; therefore, state court proceedings were valid).

When a case involves multiple defendants "the 30-day period for removal commences to run from the date the first defendant receives a copy of the complaint." Teitelbaum v. Soloski, 843 F. Supp. 614, 615 (C.D. Cal. 1994) (citing Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986)). Furthermore, pursuant to 28 U.S.C. § 1446(a), "all defendants in a state action must join in the petition for removal, except for nominal, unknown or fraudulently joined parties." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988) (citing Hewitt v. City of Stanton, 798 F.2d 1230, 1233 (9th Cir. 1986); Tri-Cities Newspapers, Inc. v. Tri-Cities P.P. & A Local, 349, 427 F.2d 325, 326-27 (5th Cir. 1970)). Accordingly, "failure to join all proper defendants in a removal petition may otherwise render the removal petition procedurally defective." Emrich, 846 F.2d at 1193 n.1. The court may allow a moving party to amend a notice of removal after the 30-day period as long as the amendment corresponds to defective allegations of jurisdiction. 28 U.S.C. § 1653. The purpose for allowing a moving party to amend a notice of removal after the 30-day period "is to permit correction of incorrect statements about extant jurisdiction." Snell v. Cleveland, Inc., 316 F.3d 822, 828 (9th Cir. 2002) (citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989)).

II. DISCUSSION

On September 1, 2009, this Court issued an Order to Show Cause ("OSC") because: 1) removal was based on federal question jurisdiction pursuant to 28 U.S.C. § 1331, but it appeared that the claims did not arise under federal law; 2) not all served defendants joined in the notice of removal; and 3) the notice of removal was filed more than thirty days after the date of service of the initial pleading or the date on which defendant first had notice of removability. The Court noted in the OSC that "Plaintiff(s) must submit a response within 30 days of the date of removal if the defects are procedural and plaintiff(s) object(s) and request(s) remand. See 28 U.S.C. § 1447(c)."

A. Procedural Defects in Defendants' Removal

The Court first deals with the second and third matters addressed in the OSC, as noted above. The Court does not remand on these bases. Both of those defects are procedural defects, not relating to the Court's subject matter jurisdiction. See Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1999) (superseded by statute on other grounds, as recognized in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681-82 (9th Cir. 2006)). The Ninth Circuit has held that a district court may not remand sua sponte for defects in removal procedure. Kelton Arms Condominium Owners Association, Inc., 346 F.3d at 1193. The basis of this holding was that 28 U.S.C. 1447(c) "'consigns procedural formalities to the care of the parties.'" Id. at 1192 (quoting In re Allstate Ins., 8 F.3d 219, 223 (5th Cir. 1993)). In this case, Defendants removed on August 12, 2009. To the extent there were procedural defects with the removal, Plaintiff failed to challenge them within thirty days of removal, or by ...


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