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Maria Lastra v. Phh Mortgage Corp F/K/A

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 28, 2011

MARIA LASTRA,
PLAINTIFF,
v.
PHH MORTGAGE CORP F/K/A
MORTGAGE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER RE: REQUEST TO AMEND NOTICE OF REMOVAL; AND ORDER DENYING MOTION TO REMAND CENDANT

Defendant Clayton Goff removed this action from state court on December 15, 2010, citing diversity jurisdiction. On December 27, PHH filed a motion for judgment on the pleadings, scheduled for hearing on February 22, 2011. On January 10, Lastra filed her amended motion to remand, with the same hearing date.

I. Amendment of Notice of Removal

The notice of removal points out the complaint sought over $75,000 in damages, and alleged Lastra is a resident of California, Goff is a citizen of Texas,*fn1 and PHH is a New Jersey corporation. / / /

In their opposition to the motion for remand, Defendants admitted they had failed to allege PHH's principal place of business. They now request leave to amend the notice of removal to say that PHH is a citizen of New Jersey only, because it has both its principal place of business there and is incorporated there. Lastra didn't oppose this request, but in fact admitted it in her motion for remand. (Mot. to Remand, ¶ 5). The request is GRANTED. The notice of removal is DEEMED AMENDED to clarify that PHH is a citizen of New Jersey.

It is also apparent Defendants intended to allege Lastra is a citizen of California (rather than merely a resident), though they have not formally done so.*fn2 Lastra's own pleadings also strongly suggest Lastra is a citizen of California, since she resides here and intends to continue residing here indefinitely. (Mot. to Remand, ¶¶ 4, 34.)

Defendants may, no later than the close of business on March 3, 2011, file an ex parte motion to deem the notice of removal amended to allege Lastra is a citizen of California.

II. Motion to Remand

Lastra's motion to remand is focused on the absence of a federal question in the complaint, the injustice she says she has suffered, and the indignity Lastra alleges the state court suffered by Defendants' violation of its injunction. It also points to evidence Lastra believes suggests Goff is really a California citizen.*fn3 And it cites rules, statutes, and precedents pertaining to jurisdiction. But none of this shows removal was improper.

Lastra hasn't shown removal was untimely or that the Court lacks jurisdiction. The fact that the Court can't exercise federal question jurisdiction doesn't mean it can't exercise jurisdiction under some other valid provision of law. Assuming (as appears to be the case) Lastra is a California citizen, the Court can exercise diversity jurisdiction pursuant to 28 U.S.C. 1332. Because Defendants are non-citizens of the forum state, Goff could remove this action with PHH's consent pursuant to 28 U.S.C.§§ 1441 and 1446, which is what he did.

The motion for remand is therefore DENIED WITHOUT PREJUDICE. Should Defendants fail to show Lastra is a California citizen within the time permitted, however, the Court will reconsider its decision and this action will be remanded.

III. Motion for Judgment on the Pleadings

The Court will reserve judgment on Defendants' unopposed motion for judgment on the pleadings until it is clear the Court has jurisdiction to reach the merits.

IT IS SO ORDERED.


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