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Nwanneka Azubuike v. Wells Fargo Bank Na

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 19, 2011

NWANNEKA AZUBUIKE,
AN INDIVIDUAL, PLAINTIFF,
v.
WELLS FARGO BANK NA, T.D., SERVICE COMPANY, DEFENDANTS.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

[Motion filed on 6/20/11]

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

Presently before the court is Plaintiff's Motion to Remand. Having considered the submissions of the parties, the court grants the motion and adopts the following order.

I. Background

On April 22, 2011, Plaintiff filed a complaint in Los Angeles County Superior Court alleging eight causes of action against Defendants Wells Fargo Bank NA ("Wells Fargo") and T.D. Service Company ("T.D. Service") related to the foreclosure of Plaintiff's home. On June 1, 2011, Wells Fargo filed a Notice of Removal pursuant to 28 U.S.C. § 1441(b) and removed the case to this court.

II. Discussion

In her motion to remand, Plaintiff argues that this court does not have original jurisdiction over this matter under 28 U.S.C. § 1441 because the parties are not completely diverse. (Motion to Dismiss at 5). A diversity action may only be removed to federal court where there is complete diversity of citizenship. Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). There is a strong presumption against removal jurisdiction, which "must be rejected if there is any doubt as to the right of removal in the first instance." Geographic Expeditions, Inc. v. Estate of Lhotka ex. rel Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (citing Gauss

v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). The proponent of federal jurisdiction bears the burden to prove that removal is proper. Id.

On May 27, 2011, T.D. Service filed a declaration of non-monetary status. (Notice of Removal, Exhibit B). Under California Civil Code Section 2924l, a trustee under a deed of trust, such as T.D. Service, may file a declaration of non-monetary status. Cal. Civ. Code § 2924l(a). If no objection to the declaration is timely filed, the trustee need not participate further. Cal. Civ. Code § 2924l(d).

Wells Fargo filed its Notice of Removal on June 1, 2011, asserting that complete diversity of the parties exists because Plaintiff is a citizen of California, Wells Fargo is a citizen of South Dakota, and T.D. Service is a nominal defendant. (Notice of Removal at 3). On June 13, 2011, however, Plaintiff timely filed an objection to T.D. Service's declaration of non-monetary status.*fn1

A party filing a declaration of non-monetary status "does not actually become a nominal party until 15 days pass without objection." Silva v. Wells Fargo Bank NA, 2011 WL 2437514 at *5 (C.D. Cal. 2011). Removing parties must show that complete diversity existed at the time of removal. (Id.) Here, Plaintiff timely objected to T.D. Service's statement of non-monetary status. T.D. Service is not, therefore, a nominal defendant, and Wells Fargo has not met its burden to show that complete diversity existed at the time of removal.*fn2

III. Conclusion

For the reasons stated above, Plaintiff's Motion to Remand is GRANTED and the case is REMANDED to Los Angeles County Superior Court. Wells Fargo's Motion to Dismiss (Dkt. No. 7) is DENIED as moot. Each party shall bear its own costs.

IT IS SO ORDERED.


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