United States District Court, C.D. California
Present: Honorable Fernando M. Olguin, United States District
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
reviewed and considered all the briefing filed with respect
to plaintiff's Motion to Remand (Dkt. 16,
“Motion”), the court finds that oral argument is
not necessary to resolve the Motion, see
Fed.R.Civ.P. 78; Local Rule 7-15; Willis v. Pac. Mar.
Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and
concludes as follows.
January 30, 2017, plaintiff Lilia Nuno
(“plaintiff”) filed a Complaint in the Los
Angeles County Superior Court against Wells Fargo Bank, N.A.
(“Wells Fargo”) and NDeX West LLC, as Trustee
(“NDeX”) (collectively, “defendants”)
relating to the foreclosure of her home. (See Dkt.
1, Notice of Removal (“NOR”) & Exh. A
(Complaint)). On March 23, 2017, Wells Fargo removed the
action to this court on the basis of diversity jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1441.
(See Dkt. 1, NOR at 1 & ¶ 2). On April 14,
2017, plaintiff filed the instant Motion challenging removal
of the action. (See Dkt. 16, Motion). Based on the
court's review of the NOR and the briefing on
plaintiff's Motion, the court hereby remands this action
to state court.
general, “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[.]” 28 U.S.C. §
1441(a). A removing defendant bears the burden of
establishing that removal is proper. See Gaus v. Miles,
Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (“The
strong presumption against removal jurisdiction means that
the defendant always has the burden of establishing that
removal is proper.”) (internal quotation marks
omitted); Abrego Abrego v. The Dow Chem. Co., 443
F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting
the “longstanding, near-canonical rule that the burden
on removal rests with the removing defendant”).
Moreover, if there is any doubt regarding the existence of
subject matter jurisdiction, the court must resolve those
doubts in favor of remanding the action to state court.
See Gaus, 980 F.2d at 566 (“Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.”). Indeed,
“[i]f 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);
see Kelton Arms Condo. Owners Ass'n, Inc. v.
Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003)
(“Subject matter jurisdiction may not be waived, and,
indeed, we have held that the district court must remand if
it lacks jurisdiction.”).
28 U.S.C. § 1446(b)(1) requires a defendant to file a
notice of removal “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[.]” While the
30-day time limit is procedural rather than jurisdictional,
“the time limit is mandatory and a timely objection to
a late petition will defeat removal[.]” Smith v.
Mylan, Inc., 761 F.3d 1042, 1045 (9th Cir. 2014)
(internal quotation marks omitted).
plaintiff contends that defendant's removal was untimely.
(See Dkt. 16, Motion at ¶¶ 14-15).
According to Wells Fargo, its removal was timely because it
filed the NOR on March 23, 2017. (See Dkt. 1 NOR at
¶ 4; Dkt. 21, Wells Fargo Bank, N.A.'s Opposition to
Plaintiff's Motion to Remand (“Opp.”) at
5-6). Wells Fargo calculates the 30-day period from February
21, 2017. (See Dkt. 1, NOR at ¶ 4; Dkt. 21,
Opp. at 5). However, in its NOR, Wells Fargo states - without
citation to any evidence - that it received service of
process “via personal service on or about February 21,
2017.” (Dkt. 1, NOR at ¶ 4). The use of “on
or about” is not a fixed date but, rather, includes a
range of dates. See, e.g., U.S.
Fidelity & Guaranty Co. v. Robert Grace Contracting
Co., 263 F. 283, 293 (3d Cir. 1920) (interpreting
“on or about” in a contract to mean “within
a reasonable time”); Cruz v. Guam Election
Com'n, 2007 WL4097355, *9 (2007 Guam 14)
(“‘On or about' is not a fixed time, but
means ‘approximately, ' or ‘at or around the
time specified.'”) (citation omitted). As such,
Wells Fargo could have been served on February 20 (or
sooner), thus making its removal untimely. Having been served
personally, Wells Fargo could have and should have provided
the precise date on which it received personal service, but
it did not. (See, generally, Dkt. 1, NOR at
¶ 4). Moreover, in response to plaintiff's Motion,
Wells Fargo merely omits the “on or about”
language from its Opposition, (see Dkt. 21, Opp. at
5), but cites the NOR as its evidence for that proposition.
(See id.) (citing Dkt. 1, NOR at ¶ 4). By
citing the NOR and omitting the “on or about”
language in its Opposition brief, Wells Fargo appears to be
misstating the evidence. In any event, the “on or
about” statement in the NOR was merely an allegation,
unsupported by any competent evidence. As with the NOR, Wells
Fargo did not provide any evidence - such as a declaration
under penalty of perjury - that it was actually served on
February 21, 2017. (See, generally,
id.). Once plaintiff raised the issue of the
timeliness of Wells Fargo's removal, it was incumbent
upon Wells Fargo to provide admissible, summary judgment type
evidence to meet its burden to establish by a preponderance
of the evidence that its removal was proper. See,
e.g., Garcia v. Wal-Mart Stores Inc., 207
F.Supp.3d 1114, 1121 (C.D. Cal. 2016) (noting that defendant
is required to put forward “summary-judgment type
evidence” to meet its burden on removal) (internal
quotation marks omitted). In short, the court finds that
Wells Fargo has not established by a preponderance of the
evidence that its removal was timely, and therefore remands
the action to state court. See 28 U.S.C. §
1446(b)(1); Smith, 761 F.3d at 1045 (The 30-day time
limit “is mandatory and a timely objection to a late
petition will defeat removal[.]”) (internal quotation
on the foregoing, IT IS ORDERED THAT:
1. Plaintiff's Motion to Remand (Document No.
16) is granted.
2. The above-captioned action shall be
remanded to the Superior Court of the State
of California for the County of Los Angeles, 111 North Hill
Street, Los Angeles, California 90012, pursuant to 28 U.S.C.
3. The Clerk shall send a certified copy of this Order to the
 Given this determination, the court
does not address plaintiff's other ...