The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND AND REMANDING ACTION TO TULARE COUNTY SUPERIOR COURT (Docket No. 3)
On August 12, 2011, Defendant Andres Lopez ("Defendant") filed a notice of removal of Tulare County Superior Court Case No. TCL145297 to the United States District Court for the Eastern District of California. (Doc. 1.) The notice alleges that the basis of removal is the violation of Defendant's rights under 15 U.S.C. Sections 1629e(10), 1629g(a)(3), and 1692(g)(a)(5) of the Fair Debt Collection Practices Act ("FDCPA"). (Doc. 1, ¶ 5.)
On August 24, 2011, Plaintiff Pacifica L. Sixteen, LLC ("Plaintiff") filed a motion for remand, asserting that Defendant failed to provide timely notice pursuant to 28 U.S.C. Section 1446(b) and that the Court lacks subject matter jurisdiction to hear this case. Defendant did not file an opposition.
The Court has reviewed the motion and supporting documents and determined that this matter is suitable for decision without oral argument pursuant to Local Rule 230(g). For the reasons set forth below, the Court GRANTS Plaintiff's motion for remand and REMANDS the action to the Tulare County Superior Court.
Pursuant to Title 28 U.S.C. Section 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." A district court has "a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not." United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). "If at any time prior to judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
The removal statute is strictly construed against removal jurisdiction. Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). The court presumes that a case lies outside the limited jurisdiction of the federal courts, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Geographic Expeditions, 599 F.3d at 1106-07; Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir.2009).
B. Procedural Defects with Defendant's Notice of Removal
1. Defendant's Notice of Removal was Not Timely
Pursuant to 28 U.S.C. Section 1446(b),"notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . ." When removability is uncertain, the 30-day period is measured from the point at which a defendant had notice that the action is removable; however, removal based on diversity must be effected within one year after the case is filed. See 28 U.S.C. § 1446(b).
Plaintiff provides proof of service that the underlying state case, no. TCL145297, an unlawful detainer action, was served upon Defendant on May 10, 2011, via posting and mailing pursuant to California Code of Civil Procedure Section 415.45. (Doc. 3-3, pp. 12-13.) Defendant filed the notice of removal on August 12, 2011, ninety-four (94) days after being served the summons and complaint. Defendant fails to show that the notice was uncertain or that he received notice of the complaint at a later date. (See Doc. 1.) Additionally, as discussed below, any removal that Defendant would seek based on diversity is improper. As such, Defendant's notice of removal is untimely pursuant to 28 U.S.C. Section 1446(b).
Nonetheless, "[u]ntimeliness of removal does not allow the court to sua sponte remand the action to superior court because an untimely removal notice is a non-jurisdictional procedural defect that may be waived by a party failing to raise it." McGuire v. California, No. C-09-5918 VRW (PR), 2011 WL 97736 at *1 (N.D. Cal. Jan. 12, 2011) (citing Kelton Arms Condo. Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003)). Here, Plaintiff raises this defect. Further, "whether the action should remain [in federal court] depends ...