The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING DEFENDANT'S REQUEST FOR REMOVAL AND REMANDING ACTION TO FRESNO COUNTY SUPERIOR COURT (Docket No. 1)
ORDER DENYING AS MOOT DEFENDANT'S APPLICATION TO PROCEED IN FORMA PAUPERIS (Docket No. 2)
On December 12, 2012, Defendant Marcella Graves ("Defendant") filed a document entitled "NOTICE OF REMOVAL" (the "Removal Notice"). (Doc. 1.) The Removal Notice alleges that removal is proper because the "case is being removed for lack of jurisdiction and venue" pursuant to 28 U.S.C. §§ 1441 ("actions removable generally") and 1404(a) ("in the interests of [j]ustice"). (Doc. 1, 2:5-9.) It appears that Defendant is seeking to remove this action based on diversity and "Constitutionally secured [r]ights." (See Doc. 14, 7:25-27, 21:18-20, 30:26-31:3.) Defendant also filed an application to proceed without the prepayment of fees. (Doc. 2.)
For the reasons set forth below, Defendant's request for removal is DENIED and the action is REMANDED to the Fresno County Superior Court. As such, Defendant's application to proceed in forma pauperis is 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. Defendant's Removal Notice is Procedurally Defective
1. Defendant Failed to Include the Underlying Complaint
Title 28 U.S.C. Section 1446(a) provides that a copy of all pleadings served on the removing defendant in the state court action must be filed along the notice of removal. Defendant's Removal Notice fails to include the underlying complaint filed by Plaintiff Nationstar LLC ("Plaintiff") in Fresno County Superior Court case no. 12CECL04502, and thus Plaintiff fails to comply with Section 1446(a). (See Doc. 1.) As noted below, Defendant's failure to provide the required pleadings prevents the Court from identifying what, if any, federal law is at issue in this action.
2. Defendant's Removal Notice Appears to be Untimely
Pursuant to Section 1446(b), "notice of removal of a civil action or proceeding shall be filed within 30 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, ...