Reynolds v. Executive Trustee Services LLC et al

Filing 9

ORDER granting defendants' 4 motion to construe their notice of removal as timely filed. Signed by Judge Frederick J Martone on 12/28/11.(ESL)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Executive Trustee Services LLC; GMAC) Mortgage LLC; U.S. Bank NA; Unknown) ) Parties named as Does 1-1000, ) ) Defendants. ) ) Audie J. Reynolds, CV 11-08195-PCT-FJM ORDER 16 17 The court has before it defendants Executive Trustee Services and GMAC Mortgage's 18 motion for notice of removal to be construed as timely filed (doc. 4). Plaintiff has not 19 responded, and the time for responding has expired. 20 Plaintiff originally filed this action in the Superior Court of Arizona in Navajo County 21 challenging defendants' ability to foreclose on his home. Both Executive Trustee Services 22 and GMAC ("defendants") were served on November 8, 2011.1 Defendants calculated the 23 notice of removal filing deadline pursuant to 28 U.S.C. ยง 1446(b) as December 8, 2011. The 24 notice of removal was filed with this court and was docketed on December 9, 2011 (doc. 1). 25 Defendants move the court to construe their notice of removal as timely filed. They assert 26 27 1 28 There is no indication in the record that defendant U.S. Bank NA has been served, and it has not yet appeared in this action. 1 that they tried to electronically file the notice on December 8, 2011, and submitted proof of 2 the court's receipt of the filing fee on that date. On December 9, 2011, defendants received 3 notice from the Clerk that due to an omission of one step during the electronic filing process, 4 the notice of removal and exhibits were not received by the court until that day. Defendants 5 state that the omission was inadvertent. 6 We agree with defendants that docketing of the notice of removal one day late will 7 not prejudice plaintiff. Defendants transmitted a copy of the notice of removal to plaintiff 8 via regular mail on December 8, 2011, Notice of Removal at 5, and immediately took action 9 to rectify the electronic filing error once discovered. Alternatively, because plaintiff failed 10 to respond to the motion, we may construe the lack of a response as a concession and grant 11 the motion summarily. See LRCiv 7.2(i) ("if the unrepresented party. . . does not serve and 12 file the required answering memoranda. . . such non-compliance may be deemed a consent 13 to the denial or granting of the motion and the Court may dispose of the motion summarily"). 14 IT IS ORDERED GRANTING defendants' motion to construe their notice of 15 16 removal as timely filed (doc. 4). DATED this 28th day of December, 2011. 17 18 19 20 21 22 23 24 25 26 27 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?