The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION FOR REMOVAL AND REMANDING ACTION TO KERN COUNTY SUPERIOR COURT (Docket No. 1)
ORDER DENYING AS MOOT DEFENDANTS' MOTION TO PROCEED IN FORMA PAUPERIS AND MOTION TO DISMISS (Docket Nos. 2, 3)
On December 22, 2011, Defendants Guadalupe M. Gonzalez and Saul V. Gonzalez ("Defendants") filed a document entitled "NOTICE AND MOTION OF REMOVAL OF THE ABOVE ENTITLE[D] CASE TO THE UNITED STATES DISTRICT COURT FOR THE US DISTRICT OF CALIFORNIA" (the "December 22, 2011, Notice"). (Doc. 1.) The December 22, 2011, Notice alleges that the basis of removal is the violation of Defendants' 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, 2:16-3:18.) Also on December 22, 2011, Defendants filed a motion to proceed without the prepayment of fees and a motion to dismiss. (Docs. 2, 3.)
For the reasons set forth below, Defendants' motion for removal is DENIED and the action is remanded to the Kern County Superior Court. As such, Defendants' motion to proceed in forma pauperis and motion to dismiss are DENIED AS MOOT.
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. The Court Cannot Determine if Defendants' Removal Notice Was 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).
The underlying state court case, no. D-1503-CL, an unlawful detainer action, was filed in Kern County Superior Court on November 17, 2011. Defendants do not provide information as to when they were served with the complaint. No proof of service of the complaint was included with the Defendants' removal notice, which was filed on December 22, 2011, thirty-five (35) days after the complaint was filed in state court. As there is no proof of service submitted, the Court cannot determine if Defendants' notice of removal was timely filed within thirty (30) days from the date of service as required under 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 has not yet filed a response to Defendants' removal notice and thus has not raised this defect.*fn1 Further, "whether the action should remain ...