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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Executive Trustee Services LLC; GMAC)
Mortgage LLC; U.S. Bank NA; Unknown)
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Parties named as Does 1-1000,
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Defendants.
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Audie J. Reynolds,

CV 11-08195-PCT-FJM
ORDER

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The court has before it defendants Executive Trustee Services and GMAC Mortgage's

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motion for notice of removal to be construed as timely filed (doc. 4). Plaintiff has not

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responded, and the time for responding has expired.

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Plaintiff originally filed this action in the Superior Court of Arizona in Navajo County

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challenging defendants' ability to foreclose on his home. Both Executive Trustee Services

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and GMAC ("defendants") were served on November 8, 2011.1 Defendants calculated the

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notice of removal filing deadline pursuant to 28 U.S.C. § 1446(b) as December 8, 2011. The

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notice of removal was filed with this court and was docketed on December 9, 2011 (doc. 1).

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Defendants move the court to construe their notice of removal as timely filed. They assert

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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.

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that they tried to electronically file the notice on December 8, 2011, and submitted proof of

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the court's receipt of the filing fee on that date. On December 9, 2011, defendants received

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notice from the Clerk that due to an omission of one step during the electronic filing process,

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the notice of removal and exhibits were not received by the court until that day. Defendants

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state that the omission was inadvertent.

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We agree with defendants that docketing of the notice of removal one day late will

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not prejudice plaintiff. Defendants transmitted a copy of the notice of removal to plaintiff

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via regular mail on December 8, 2011, Notice of Removal at 5, and immediately took action

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to rectify the electronic filing error once discovered. Alternatively, because plaintiff failed

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to respond to the motion, we may construe the lack of a response as a concession and grant

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the motion summarily. See LRCiv 7.2(i) ("if the unrepresented party. . . does not serve and

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file the required answering memoranda. . . such non-compliance may be deemed a consent

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to the denial or granting of the motion and the Court may dispose of the motion summarily").

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IT IS ORDERED GRANTING defendants' motion to construe their notice of

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removal as timely filed (doc. 4).
DATED this 28th day of December, 2011.

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