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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Deichmiller,

No. CV-14-00290-PHX-GMS
Plaintiff,

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ORDER

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v.

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Deutsche Bank National Trust Company,
Ocwen Loan Servicing LLC, Northwest
Trustee Services Incorporated,

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Defendants.

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Pending before the Court are Plaintiff’s Motion to Remand (Doc. 12) and Request

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for Summary Disposition of Plaintiff’s Motion to Remand (Doc. 20). For the following

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reasons, the Request for Summary Disposition is denied and the Motion to Remand is

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granted.1

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BACKGROUND

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Plaintiff David Deichmiller filed this action in Arizona state court on January 30,

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2014. (Doc. 1-1.) The complaint asserts various causes of action against the Defendants

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in relation to Deichmiller’s home and mortgage. (Id.) On February 6, Deichmiller filed

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affidavits of service, stating that he had served all three defendants on January 31. (Id.)

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On February 13, 2013, Defendants Deutsche Bank National Trust Company

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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).

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(“Deutsche Bank”) and Ocwen Loan Servicing LLC (“Ocwen”) filed for removal in this

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Court asserting jurisdiction based on Federal Question and Diversity Jurisdiction. (Doc.

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1.) Defendant Northwest Trustee Services Incorporated (“Northwest Trustee”) did not

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join in that filing and the filing makes no avowal or reference to Northwest Trustee’s

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position in relation to the motion. (See id.) On February 27, counsel for Northwest

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Trustee entered an appearance in this case. (Doc. 10.)

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On March 17, Deichmiller filed motions seeking remand based on several reasons.

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(Docs. 12–13.) Procedurally, Deichmiller argues that all of the Defendants did not

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consent to the removal in a timely manner and the filing of the Notice of Removal failed

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to comply with Local Rule 3.6. (Id.) Substantively, Deichmiller argues that there is no

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federal question jurisdiction because state law predominates and there is no diversity

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jurisdiction because the amount in controversy requirement is not met. (Id.) On April 7,

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Northwest Trustee filed a motion consenting to and joining the Notice of Removal filed

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by the other defendants. (Doc. 16.)
DISCUSSION

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I.

Summary Disposition

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Deichmiller moves for summary disposition based on Defendants’ untimely

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response to the Motion to Remand. Under the Local Rules of this Court, responsive

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memorandum should be served within fourteen days. LRCiv 7.2(c). Failure to do so “may

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be deemed a consent to the denial or granting of the motion and the Court may dispose of

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the motion summarily.” LRCiv 7.2(i) (emphasis added). Deichmiller asks that the rule be

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applied in this case because Defendant’s Response was four days late.

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Here, the Defendants did request an extension from Deichmiller even if that

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request came one day after the deadline. Although Defendants failed to file their

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responsive motion within the deadline, half of the four days that they were late were

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weekend days. The Court accepts the delayed response and will not dispose of the matter

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summarily or treat the delay as a consent in this case.

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II.

Timely Consent to Removal

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In the Ninth Circuit, the removal statute is strictly construed and a court must

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reject federal jurisdiction “if there is any doubt as to the right of removal in the first

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instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) When seeking removal,

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“all defendants who have been properly joined and served must join in or consent to the

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removal of the action.” 28 U.S.C. § 1446(b)(2)(A). However, nominal parties need not

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join in the removal petition. Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir.

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1986). A defendant must file the notice of removal within “30 days after receipt by or

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service on that defendant of the initial pleading or summons.” 28 U.S.C. § 1446(b)(2)(B).

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Here, only two of the three defendants joined in the Notice of Removal. The

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Notice did not indicate whether Northwest Trustee had consented to removal. Northwest

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Trustee was served on January 31 and did not file a motion indicating that it wished to

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join in the removal until April 7, over two months after service. Accordingly, all

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“properly joined and served” defendants did not file a notice of removal within 30 days.

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There is no argument that Northwest Trustee is a nominal party that did not need to

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consent.

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Defendants argue against remand, but the cases they cite all support the conclusion

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that this case should be remanded back to state court. Defendants note that one district

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court found that it was only a technical defect where the notice of removal only averred

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the consent of a non-moving defendants. City of Univ. City, Missouri v. AT & T Wireless

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Servs., Inc., 229 F. Supp. 2d 927, 930 (E.D. Mo. 2002). Here, there was no such

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averment, and the court in that case held that “[i]f there was no averment by counsel that

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all parties consented to the removal, then remand would be appropriate.” Id. Another

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court cited by Defendants held that “the defendant seeking removal must explain the

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absence of the co-defendants in the notice of removal, and the failure to set out such an

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explanation renders the notice facially defective.” Yount v. Shashek, 472 F. Supp. 2d

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1055, 1060 (S.D. Ill. 2006). Here, there was no explanation and the notice is facially

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defective under the reasoning in Yount.

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The final case cited by defendants also supports remand. It held that

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[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”).

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Michaels v. State of N.J., 955 F. Supp. 315, 321 (D.N.J. 1996) (citation expanded). The

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only written filing by Northwest Trustee within the thirty days was a notice of

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appearance. That filing does not indicate or imply support of the notice of removal.

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Northwest Trustee did not provide unambiguous written evidence of consent in a filed

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writing until April 6, and that notice was untimely.

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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.

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IT IS HEREBY ORDERED that the Motion to Remand (Doc. 12) is

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GRANTED. The Clerk of Court is directed to remand this matter to Maricopa County

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Superior Court and terminate this action.

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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.

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