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The Bank of New York Mellon Fka the Bank of New York, As Trustee For the Certificate of Holders of the v. David Kiely

September 27, 2012

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE OF HOLDERS OF THE CWABS, INC., ASSET- CYNTHIA BACKED CERTIFICATES, SERIES 2007-5,
PLAINTIFF,
v.
DAVID KIELY, AN INDIVIDUAL; CYNTHIA KIELY, AN INDIVIDUAL; AND DOES 1THROUGH 50, INCLUSIVE,
DEFENDANTS.



ORDER REGARDING NOTICE REMOVAL BY DEFENDANT KIELY ORDER REMANDING TO STATE COURT

On September 24, 2012, Defendant Cynthia Kiely ("Defendant")*fn1 filed a Notice of Removal with this Court, seeking to remove an action from the Mariposa County Superior Court entitled The Bank of New York Mellon v. David Kiely, et al., case number 2664. (Doc. 1.)

Pursuant to Title 28 of the United States Code section 1441(a), a defendant may remove an action to federal court if the district court has original jurisdiction. 28 U.S.C. § 1441(a);

Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 861 (9th Cir. 2003)). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). Generally, a defendant seeking to remove an action to federal court must file a notice of removal within thirty (30) days of receiving a copy of the initial pleading. 28 U.S.C. § 1446(b). The defendant seeking removal of an action to federal court has the burden of establishing federal jurisdiction in the case. California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004).

Timeliness

Title 28 of the United States Code section 1446 provides, in pertinent part:

(a) A defendant or defendants desiring to remove any civil action . . . from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) The 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed with the court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . ..

Here, Defendant's removal notice includes a copy of the summons and a partial*fn2 copy of the complaint for unlawful detainer filed in Mariposa County Superior Court, as well as a copy of a proposed order granting relief from stay and the court's minutes dated June 27, 2012, in Defendant's bankruptcy proceeding pending before the United States Bankruptcy Court for the Eastern District of California. (Doc. 1 at 8-20.) Notably absent from Defendant's notice of removal however is any reference to any alleged date of service of process of the summons and complaint. (Doc. 1 at 1-7.) Nonetheless, the complaint for unlawful detainer was filed with the Mariposa County Superior Court on May 15, 2012, approximately 132 days prior to Defendant having filed the notice of removal with this Court. Thus, it appears to be untimely. 28 U.S.C. § 1446(b). While Defendant's pleading does state that the notice is "timely . . . because it is filed within 30 days of discovering that the case was ripe for removal" (Doc. 1 at 5), there is no indication that the initial pleading - the complaint - did not provide Defendant with notice of the potential for removal. Moreover, even were the initial pleading to be construed as not providing such notice, Defendant has not identified any subsequent and later "amended pleading, motion, order or other paper" that provided notice so as to render her notice here timely. See 28 U.S.C. § 1446(b).

Nevertheless, although removal appears untimely, the Court will turn to address the issue of jurisdiction.

Jurisdiction

Defendant is attempting remove an unlawful detainer action based on federal question subject matter jurisdiction. (Doc. 1 at 1-7.) However, Defendant cannot establish jurisdiction that is proper.

Federal courts are courts of limited jurisdiction and lack inherent or general subject matter jurisdiction. Federal courts can adjudicate only those cases authorized by the United States Constitution and Congress. Generally, those cases involve diversity of citizenship or a federal question, or cases in which the United States is a party. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 1677 (1994); Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 2008 (1989). Federal courts are presumptively without jurisdiction over civil actions. Kokkonen, 511 U.S. at 377. Lack of subject matter jurisdiction is never waived and may be raised by the Court sua sponte. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). "Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction is what its power rests upon. Without jurisdiction it is nothing." In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988).

Furthermore, the law is clear in the Ninth Circuit that the removal statute should be strictly construed in favor of remand and against removal. Harris v. Bankers Life and Cas. Co, 425 F.3d 689, 698 (9th Cir. 2005). The "strong presumption" against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper. Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Federal jurisdiction must ...


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