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

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 1, 2011

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

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

ORDER GRANTING EX PARTE APPLICATION TO DEEM NOTICE OF REMOVAL AMENDED; AND ORDER GRANTING MOTION FOR JUDGMENT ON THE ORDER RE: RELATED CASE

On December 15, 2010, Defendant Clayton Goff removed this action from state court, citing diversity jurisdiction. The notice of removal alleged PHH's state of incorporation but not its principal place of business, and alleged Lastra's state of residence (California) rather than her citizenship. Lastra moved for remand, citing the lack of a federal question but not addressing diversity. Goff sought leave to amend the notice of removal to include PHH's principal place of business. Defendants also moved for judgment on the pleadings, and Lastra didn't oppose this motion.

On February 28, the Court issued an order deeming the notice of removal amended to include PHH's principal place of business, and denying Lastra's motion for remand without prejudice. That order pointed out Goff hadn't formally alleged Lastra was a California citizen, only that she was a California resident, though it appeared she herself had alleged facts showing she was also a California citizen. The Court therefore gave Defendants leave to move ex parte to deem the notice of removal amended to include an allegation that Lastra is a California citizen. The motion for remand was denied without prejudice, with the caveat that if Defendants failed to promptly allege Lastra's citizenship as formally required, the Court would reconsider its order denying remand.

I. Amendment of Notice of Removal

The notice of removal suffered from formal pleading defects, but it is evident the parties are all diverse and the amount in controversy is met for the Court's exercise of diversity jurisdiction. Removal was timely, because Goff removed within 30 days of being served with the complaint.*fn1 See 28 U.S.C. § 1446(b); Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011) (holding that a defendant may remove an action 30 days after being served with the complaint, without regard to when other defendants were served). The notice of removal is therefore DEEMED AMENDED to allege that Lastra is a citizen (not merely a resident) of California. Defendants' request for judicial notice is DENIED AS MOOT because it is not necessary at this stage to offer proof of the uncontested issue of Lastra's citizenship. See 28 U.S.C. § 1446(a).

II. Motion for Judgment on the Pleadings

As noted, Lastra never opposed Defendants' motion for judgment on the pleadings. Under Civil Local Rule 7.1(f)(3)(c), failure to file an opposition to a motion when required to do so can constitute consent to the granting of that motion. Furthermore, the motion is well taken because the complaint is a form complaint devoid of the type of allegations required in federal court. See Fed. R. Civ. P. 8.

The motion for judgment on the pleadings is therefore GRANTED and the complaint is DISMISSED WITHOUT PREJUDICE. Lastra may, if she wishes, file an amended complaint no later than the close of business on Friday, April 1, 2011. She is directed to review the applicable rules, particularly Fed. R. Civ. P. 8, 9, and 10, and Civil Local Rule 5.1 particularly before amending.

III. Related Case

On December 15, 2010, Defendants filed a notice of related case, identifying reasons why they thought this case was related to Lastra v. PHH Mortgage Corp., et al., 10cv2571-JLS (NLS). Based on the current non-specific complaint, the Court cannot evaluate whether the two cases are related. If Lastra files an amended complaint, the Clerk is directed to generate and forward a low-number order.

IT IS SO ORDERED.


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