The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER REMANDING ACTION TO STANISLAUS COUNTY SUPERIOR COURT (Docket No. 1)
On December 28, 2011, Defendants Torbin Durazo and Nannette Reynolds ("Defendants") filed a document in the United States Court for the Eastern District of California, Sacramento Division entitled "NOTICE OF REMOVAL OF CASE TO FEDERAL COURT PURSUANT TO 28 U.S.C. §§ 1331 and 1446" (the "Removal Notice"). (Doc. 1.) On February 3, 2012, the Eastern District Court, Sacramento Division issued an Order of Intradistrict Transfer, finding that because the property at issue in this action is located in Stanislaus County, the action should have been commenced in the Fresno Division of the United States Court for the Eastern District of California. *fn1
(Doc. 3.) As such, the action was transferred from the Sacramento Division to the Fresno Division. (Docs. 3, 4.)
The Removal Notice alleges that the removal is proper because the suit arises under federal law. 28 U.S.C. §§ 1331, 1441(a). Although Plaintiffs do not clearly set forth what federal question is at issue, it appears that they are asserting that Defendants violated 12 U.S.C. § 5220, the Assistance to Homeowners under the Troubled Assets Relief Program. (Doc. 1, 2:25-26.)
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. 670464, an unlawful detainer action, was filed in Stanislaus County Superior Court on November 2, 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 in the United States District Court, Eastern District of California, Sacramento Division on December 28, 2011, fifty-six (56) days after the complaint was filed in state court. Defendants included in the Removal Notice a copy of their demurrer that appears to have been filed in state court. (Doc. 1, pp. 9-14.) The demurrer states that Plaintiffs were served with the complaint on November 4, 2011. (Doc. 1, 12:11-12.) If Plaintiffs were, in fact, served on November 4, 2011, then they untimely filed their Removal Notice fifty-four (54) days after they were served. However, as no proof of service was submitted, the Court cannot adequately determine when Defendants were served and if Defendants' Removal Notice 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)). Further, "whether the action should remain [in federal
court] depends ...