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Runaj v. Wells Fargo Bank

September 30, 2009

JULINDA RUNAJ, PLAINTIFF,
v.
WELLS FARGO BANK AND TD SERVICE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING PLAINTIFF'S MOTION TO REMAND (Doc. No. 11); (2) GRANTING DEFENDANT WELLS FARGO'S MOTION TO DISMISS THE COMPLAINT (Doc. No. 5); and (3) DENYING AS MOOT DEFENDANT WELLS FARGO'S MOTION FOR MORE DEFINITE STATEMENT (Doc. No. 6.)

Presently before the Court are Plaintiff's motion to remand the case to state court, and defendant Wells Fargo Bank's ("Wells Fargo") motions to dismiss the complaint for failure to state a claim, or alternatively for a more definite statement. For the reasons stated herein, the Court denies Plaintiff's motion to remand, grants Wells Fargo's motion to dismiss, and denies Wells Fargo's motion for more definite statement as moot.

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 2006, Plaintiff allegedly received a loan from Wells Fargo in the amount of $496,000.00. Plaintiff applied the loan proceeds to the purchase of a 6,000 square foot lot containing one home, and with the intention to rebuild a second home on the property, which had previously burned down. As of the date Plaintiff filed her complaint, she had not yet completed construction of the second home. Plaintiff alleges that because of recent declines in the real estate market, the value of the completed home would be $325,000 less than the current amount she owes on the loan. (Compl. at 3.)

Plaintiff, proceeding pro se, filed the instant complaint in San Diego Superior Court on May 22, 2009. The action allegedly arises, inter alia, from Defendants' refusal to agree to modify or negotiate the terms of Plaintiff's loan. The complaint alleges violations of California Civil Code Section 2923.6; the federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq.; TILA's regulations, 12 C.F.R. §§ 226.1- .29 ("Reg. Z"); and the federal Home Ownership Equity Protection Act, 15 U.S.C. § 1639 ("HOEPA"). Wells Fargo removed the case to this Court on June 19, 2009. (Doc. No. 1.) On June 26, 2009 Wells Fargo filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 5.) On June 29, 2009 Wells Fargo filed a motion alternatively moving for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). (Doc. No. 6.) On July 23, 2009 Plaintiff filed an untimely opposition to Wells Fargo's motion to dismiss the complaint. (Doc. No. 8.) That same day, Plaintiff filed a "Response to Motion to Remove." (Doc. No. 9.) On July 27, 2009, Wells Fargo filed an additional brief in support of its motion to dismiss the complaint and for a more definite statement. (Doc. No. 7.)

In an order dated July 30, 2009 the Court construed Plaintiff's "Response to Motion to Remove" as a motion to remand the case to state court. (Doc. No. 10.) The Court also found Wells Fargo's motions to dismiss the complaint and for a more definite statement and Plaintiff's motion to remand to be appropriate for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1). (Id.) The Court's order also gave Wells Fargo leave to file a reply to Plaintiff's untimely opposition to the motion to dismiss, and set a briefing schedule on the motion to remand. (Id.) Wells Fargo accordingly filed a "response" brief in support of its motions on August 13, 2009, and also filed an opposition to Plaintiff's motion to remand. (Doc. Nos. 13 and 14.) Instead of filing a reply in support of her motion to remand, as directed by the Court's order, Plaintiff filed a second opposition brief to Wells Fargo's motion to dismiss on August 20, 2009.*fn1 (Doc. No. 18.)

DISCUSSION

I. Plaintiff's Motion to Remand

A. Legal Standard

An action is removable to federal court if it might have been brought there originally. 28 U.S.C. § 1441(a) (2009). The propriety of the removal may be tested in federal court by a motion to remand. 28 U.S.C. § 1447(c). Remand of a case to state court after removal is appropriate when removal is procedurally improper or when there are no grounds for federal jurisdiction, whether federal-question (i.e. subject matter) or diversity. Id.; Baker v. BDO Seidman, L.L.P., 390 F. Supp. 2d 919, 920 (N.D. Cal. 2005) (noting that federal jurisdiction is "traditionally predicated upon diversity jurisdiction or federal question jurisdiction"). The removal statute is strictly construed against removal jurisdiction, and the court must reject federal jurisdiction if there is any doubt as to whether removal was proper. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir.2003) ("Where doubt regarding the right to removal exists, a case should be remanded to state court."). The party seeking removal bears the burden of proving the propriety of removal. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996).

B. Analysis

Plaintiff presents several arguments in support of her motion to remand the case to state court. First she appears to argue the removal was procedurally defective because she was improperly served with Defendant's notice of removal. (Motion to Remand at 2.) Plaintiff also appears to argue the Court has neither diversity nor federal question jurisdiction over the action. (Id. at 2-3.) Defendant argues Plaintiff's motion is untimely and that she has otherwise failed to properly challenge the removal of this case to federal court. The Court addresses each argument below.

1. "Procedural Defect" Objections

Plaintiff contends the removal of this case was procedurally improper because she was not "formally" served as required by Federal Rules of Civil Procedure 41 and 45, and did not receive "personal service" as required by Federal Rule of Civil Procedure 4. She further argues Wells Fargo's notice of removal failed to comply with Federal Rule of Civil Procedure 11.

28 U.S.C. § 1446(d), which governs the procedure for removal of a case from state court, provides that "[p]romptly after the filing of [a] notice of removal of a civil action the defendant[s] shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded." Section 1446(d) does not require "formal" or "personal" service of a notice of removal upon a plaintiff; it merely requires "written notice." Here, Wells Fargo filed a certificate of service with this Court on June 19, 2009 stating it had served the notice of removal upon Plaintiff by mail on June 18, 2009, along with the civil cover sheet, certification of interested parties, and defendant TD Service Company's consent to removal. (Doc. No. 4.)

Plaintiff has failed to identify any procedural defects in the removal of this case. Plaintiff does not contest the veracity of the proof of service described above, or contend that she did not receive written notice of the removal of the action as § 1446(d) requires. Moreover, Federal Rules of Civil Procedure 4, 41, and 45 do not apply to notices of removal. Rule 4 governs the service of a summons, Rule 41 governs the dismissal of actions, and Rule 45 governs the issuance of subpoenas. See Fed. R. Civ. Proc. 4, 41. and 45. Turning to Plaintiff's Rule 11 objection, 28 U.S.C. § 1446(a) provides, "defendant[s] desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil ...


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