Federal National Mortgage Association v. Dumont et al

Filing 6

ORDER: Defendants show by July 29, 2011, why this action should not be remanded to the Superior Court. See order for complete details. Signed by Judge Neil V Wake on 7/15/11. (NKS)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Federal National Mortgage Association, )
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Plaintiff,
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vs.
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Raymond J. Dumont, et al.,
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Defendants.
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No. CV-11-01399-PHX-NVW
ORDER

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Defendants’ Notice of Removal (Doc. 1) filed July 14, 2011, is untimely on its

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face. Under 28 U.S.C. § 1446(b), the notice of removal must be filed within thirty days

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after receipt by the defendant. The Notice of Removal states that Defendants are

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removing an action pending in Maricopa County Superior Court filed on June 28, 2011,

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with case number CV2010-024464, but Defendants have attached the Complaint filed in

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Superior Court case number CV2010-024464, which indicates that it was filed on August

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30, 2010. Superior Court records show that an affidavit of service was filed on

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September 22, 2010.

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Further, the Notice of Removal here alleges diversity jurisdiction under 12 U.S.C.

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§ 1332 and that “Defendants are citizens of the State of Arizona.” If the only basis for

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removal is diversity jurisdiction, the action is removable only if none of the defendants is

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a citizen of the state in which the action was brought. 28 U.S.C. § 1441(b). Moreover,

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the Notice of Removal does not allege any facts regarding Plaintiff’s citizenship.

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Finally, the Notice of Removal of this action for forcible detainer after trustee’s

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sale does not allege facts to support its conclusion that “the amount in controversy

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exceeds $75,000.” The Complaint seeks judgment awarding Plaintiff the right to

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immediate possession of the property and a writ of restitution to restore possession of the

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property to Plaintiff. Because the sole issue in a forcible detainer action is the right of

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possession, not title, there is no amount in controversy in the absence of other relief

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sought. See A.R.S. § 12-1177(A).

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Federal courts may exercise removal jurisdiction over a case only if subject matter
jurisdiction exists. 28 U.S.C. § 1441(a); Toumajian v. Frailey, 135 F.3d 648, 653 (9th

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Cir. 1998). The removing party bears the burden of establishing subject matter

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jurisdiction as a basis for removal. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195

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(9th Cir. 1988). To satisfy this burden, the removing party must demonstrate that either

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diversity or federal question jurisdiction existed at the time of removal. Hunter v. Philip

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Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing 28 U.S.C. § 1441). If at any

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time before final judgment it appears that the district court lacks subject matter

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jurisdiction over a case removed from state court, the case must be remanded. 28 U.S.C.

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§ 1447(c).

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IT IS THEREFORE ORDERED that Defendants show by July 29, 2011, why this
action should not be remanded to the Superior Court.
DATED this 15th day of July, 2011.

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