The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER REMANDING ACTION TO TULARE COUNTY SUPERIOR COURT (Docket No. 1)
On April 9, 2012, Defendant Alex J. Glover ("Glover") filed a document entitled "Notice of Removal" (the "Removal Notice"). (Doc. 1.) The Removal Notice seeks to remove this action from the Tulare County Superior Court and alleges that the basis of the removal is the violation of Glover's rights under the Protecting Tenants at Foreclosure Act ("PTFA"), 12 U.S.C. § 5220. (Doc. 1, ¶¶ 5-7.) For the reasons set forth below, the case is REMANDED to the Tulare County Superior Court.
II. PROCEDURAL BACKGROUND
On January 27, 2012, Plaintiff Federal National Mortgage Association ("Plaintiff") filed a verified complaint for unlawful detainer in the Tulare County Superior Court, case no. 151606, against Defendants Howard L. Detmer, Martha C. Detmer (the "Detmer Defendants") and Does 1 through 5. (Doc. 1, pp. 14-15.) A Notice to Any Renters appears to have been posted and mailed with a Notice to Quit. (Doc. 1, pp. 16, 19-20.) Plaintiff applied for an order to serve the summons and complaint by posting, which was granted by the Tulare County Superior Court on February 9, 2012. (Doc. 1, pp. 16-17.) On March 22, 2012, notification regarding the unlawful detainer trial was filed and served on Defendant Glover, who, based upon the defenses claimed in the Removal Notice, appears to be a renter at the subject property. (Doc. 1, 2:24-3:19, p. 21.) Glover filed the instant Removal Notice in this Court on April 9, 2012. (Doc. 1, p. 1.)
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), cert. denied, 131 S.Ct. 65 (2010). 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 Glover's Removal Notice Was Timely
Pursuant to 28 U.S.C. Section 1446(b)(1), "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(c)(1).
The underlying state court case, no. 151606, an unlawful detainer action, was filed in Tulare County Superior Court on January 27, 2012. On February 9, 2012, the Tulare County Superior Court issued an order that Plaintiff could serve the unlawful detainer summons by posting, and on March 22, 2012, Glover was served with a notification regarding the date of the court trial. (Doc. 1, pp. 16-17, 21.) However, Glover does not provide information as to when he was actually served with the complaint. No proof of service of the complaint was included with the Removal Notice, which was filed in this Court on April 9, 2012, seventy-three (73) days after the complaint was filed in state court and sixty (60) days after the court ordered that Plaintiff could serve the summons by posting. However, the notification regarding the unlawful detainer trial was served on Glover on March 22, 2012, only eighteen (18) days before the Removal Notice was filed. As Glover does not indicate when he was served with the complaint, the Court cannot determine whether the 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. Cal., 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 ...