Deichmiller v. Deutsche Bank National Trust Company et al

Filing 27

ORDER, the Motion to Remand 12 is granted; the Clerk is directed to remand this matter to Maricopa County Superior Court and terminate this action; the Request for Summary Disposition of Plaintiff's Motion to Remand 20 is denied. Signed by Judge G Murray Snow on 7/23/14.(REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Deichmiller, No. CV-14-00290-PHX-GMS Plaintiff, 10 ORDER 11 v. 12 Deutsche Bank National Trust Company, Ocwen Loan Servicing LLC, Northwest Trustee Services Incorporated, 13 14 Defendants. 15 Pending before the Court are Plaintiff’s Motion to Remand (Doc. 12) and Request 16 for Summary Disposition of Plaintiff’s Motion to Remand (Doc. 20). For the following 17 reasons, the Request for Summary Disposition is denied and the Motion to Remand is 18 granted.1 19 BACKGROUND 20 Plaintiff David Deichmiller filed this action in Arizona state court on January 30, 21 2014. (Doc. 1-1.) The complaint asserts various causes of action against the Defendants 22 in relation to Deichmiller’s home and mortgage. (Id.) On February 6, Deichmiller filed 23 affidavits of service, stating that he had served all three defendants on January 31. (Id.) 24 On February 13, 2013, Defendants Deutsche Bank National Trust Company 25 26 1 27 28 The requests for oral argument are denied because the parties have thoroughly discussed the law and the evidence, and oral argument will not aid the Court’s decision. See Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 (“Deutsche Bank”) and Ocwen Loan Servicing LLC (“Ocwen”) filed for removal in this 2 Court asserting jurisdiction based on Federal Question and Diversity Jurisdiction. (Doc. 3 1.) Defendant Northwest Trustee Services Incorporated (“Northwest Trustee”) did not 4 join in that filing and the filing makes no avowal or reference to Northwest Trustee’s 5 position in relation to the motion. (See id.) On February 27, counsel for Northwest 6 Trustee entered an appearance in this case. (Doc. 10.) 7 On March 17, Deichmiller filed motions seeking remand based on several reasons. 8 (Docs. 12–13.) Procedurally, Deichmiller argues that all of the Defendants did not 9 consent to the removal in a timely manner and the filing of the Notice of Removal failed 10 to comply with Local Rule 3.6. (Id.) Substantively, Deichmiller argues that there is no 11 federal question jurisdiction because state law predominates and there is no diversity 12 jurisdiction because the amount in controversy requirement is not met. (Id.) On April 7, 13 Northwest Trustee filed a motion consenting to and joining the Notice of Removal filed 14 by the other defendants. (Doc. 16.) DISCUSSION 15 16 I. Summary Disposition 17 Deichmiller moves for summary disposition based on Defendants’ untimely 18 response to the Motion to Remand. Under the Local Rules of this Court, responsive 19 memorandum should be served within fourteen days. LRCiv 7.2(c). Failure to do so “may 20 be deemed a consent to the denial or granting of the motion and the Court may dispose of 21 the motion summarily.” LRCiv 7.2(i) (emphasis added). Deichmiller asks that the rule be 22 applied in this case because Defendant’s Response was four days late. 23 Here, the Defendants did request an extension from Deichmiller even if that 24 request came one day after the deadline. Although Defendants failed to file their 25 responsive motion within the deadline, half of the four days that they were late were 26 weekend days. The Court accepts the delayed response and will not dispose of the matter 27 summarily or treat the delay as a consent in this case. 28 -2- 1 II. Timely Consent to Removal 2 In the Ninth Circuit, the removal statute is strictly construed and a court must 3 reject federal jurisdiction “if there is any doubt as to the right of removal in the first 4 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) When seeking removal, 5 “all defendants who have been properly joined and served must join in or consent to the 6 removal of the action.” 28 U.S.C. § 1446(b)(2)(A). However, nominal parties need not 7 join in the removal petition. Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 8 1986). A defendant must file the notice of removal within “30 days after receipt by or 9 service on that defendant of the initial pleading or summons.” 28 U.S.C. § 1446(b)(2)(B). 10 Here, only two of the three defendants joined in the Notice of Removal. The 11 Notice did not indicate whether Northwest Trustee had consented to removal. Northwest 12 Trustee was served on January 31 and did not file a motion indicating that it wished to 13 join in the removal until April 7, over two months after service. Accordingly, all 14 “properly joined and served” defendants did not file a notice of removal within 30 days. 15 There is no argument that Northwest Trustee is a nominal party that did not need to 16 consent. 17 Defendants argue against remand, but the cases they cite all support the conclusion 18 that this case should be remanded back to state court. Defendants note that one district 19 court found that it was only a technical defect where the notice of removal only averred 20 the consent of a non-moving defendants. City of Univ. City, Missouri v. AT & T Wireless 21 Servs., Inc., 229 F. Supp. 2d 927, 930 (E.D. Mo. 2002). Here, there was no such 22 averment, and the court in that case held that “[i]f there was no averment by counsel that 23 all parties consented to the removal, then remand would be appropriate.” Id. Another 24 court cited by Defendants held that “the defendant seeking removal must explain the 25 absence of the co-defendants in the notice of removal, and the failure to set out such an 26 explanation renders the notice facially defective.” Yount v. Shashek, 472 F. Supp. 2d 27 1055, 1060 (S.D. Ill. 2006). Here, there was no explanation and the notice is facially 28 defective under the reasoning in Yount. -3- 1 2 The final case cited by defendants also supports remand. It held that 9 [w]hile courts generally do not require all defendants to sign the removal petition itself, most courts have required some form of unambiguous written evidence of consent to the court in timely fashion. See, e.g., Roe v. O’Donohue, 38 F.3d 298, 301 (7th Cir. 1994) (“To ‘join’ a motion means to support it in writing”) (citations omitted); Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262, n.11 (5th Cir. 1988) (“This does not mean that each defendant must sign the original petition for removal, but there must be some timely filed written indication from each served defendant . . . that it actually consented to such action”). 10 Michaels v. State of N.J., 955 F. Supp. 315, 321 (D.N.J. 1996) (citation expanded). The 11 only written filing by Northwest Trustee within the thirty days was a notice of 12 appearance. That filing does not indicate or imply support of the notice of removal. 13 Northwest Trustee did not provide unambiguous written evidence of consent in a filed 14 writing until April 6, and that notice was untimely. 3 4 5 6 7 8 15 16 The removal statute is strictly construed and Defendants failed to meet its requirements or provide support for their position that their failure should be ignored. 17 IT IS HEREBY ORDERED that the Motion to Remand (Doc. 12) is 18 GRANTED. The Clerk of Court is directed to remand this matter to Maricopa County 19 Superior Court and terminate this action. 20 21 22 IT IS FURTHER ORDERED that the Request for Summary Disposition of Plaintiff’s Motion to Remand (Doc. 20) is DENIED. Dated this 23th day of July, 2014. 23 24 25 26 27 28 -4-

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