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Maria Lastra v. Phh Mortgage Corporation

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 12, 2011

MARIA LASTRA,
PLAINTIFF,
v.
PHH MORTGAGE CORPORATION; COLDWELL BANKER HOME LOAN,
DEFENDANTS.

The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

(Doc. No. 10.)

Plaintiff, a California citizen, began this action in state court on November 2, 2010, asserting state law claims. (Doc. No. 1 (Notice of Removal) ¶ 1.) She named PHH Mortgage Corporation and Coldwell Banker Home Loan as defendants. (Id.) On December 15, 2010, Coldwell removed the action to this Court, claiming diversity under 28 U.S.C. § 1332. (Id. ¶ 2.) Coldwell alleged that it was a citizen of Delaware, PHH was a citizen of New Jersey, and the amount in controversy exceeded $75,000. (Id. ¶¶ 4--8.) Plaintiff responded with the present motion to remand, arguing that Coldwell's notice of removal did not properly prove that the amount in controversy exceeded $75,000 and that complete diversity existed. (Doc. No. 10 (Mot. to Remand) at 2.) As part of Defendant's opposition to the motion to remand, Defendant raised the issue of timeliness of the notice of removal. (Id. at 6.) Defendant argued, obviously, that its notice of removal was timely. But saying so doesn't make it so. And by raising the issue, Defendant made its own bed.

Defendant has not, and cannot, establish that it filed a timely notice of removal. A defendant must file a notice of removal in the district court within thirty days after being served with the summons and complaint, 28 U.S.C. § 1446(b), and this removal period is triggered by service of process as governed by state law, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). In this case, service is determined under California Code of Civil Procedure § 415.40, and it provides that service by mail is effective ten days after the summons and complaint are mailed with a return receipt requested. Cal. Code Civ. Proc. § 415.40.

Coldwell filed its notice of removal on December 15, 2010. (See Notice of Removal at 1.) Applying the thirty-day rule of 28 U.S.C. § 1446(b), removal would be timely only if Plaintiff served Defendants on or after November 16, 2010. Although Coldwell contends it "was never properly served with the Complaint," see Opp'n at 2, Plaintiff provides the Court with a copy of a proof of service by mail, which unambiguously shows that Plaintiff mailed Coldwell the summons and complaint, return receipt requested, on November 2, 2010. (See Doc. No. 22 at Ex. B.) Applying the ten-day rule of Cal. Code Civ. Proc. § 415.40, service on Coldwell was effective on November 12, 2010. Coldwell's notice of removal is therefore untimely. "The removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009).

The Court GRANTS Plaintiff's motion to remand. This action is remanded to the Superior Court of California, County of San Diego.

IT IS SO ORDERED.

20110412

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