Flanigan v. OneWest Bank FSB et al

Filing 19

ORDER Plaintiff Patrick Flanigan's motion to remand 9 is granted. This case is remanded to the Coconino County Superior Court. The Clerk of Court is directed to terminate this action. Signed by Judge David G Campbell on 8/13/13. (Attachments: # 1 Remand letter)(TLJ)

Flanigan v. OneWest Bank FSB et al

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Doc. 19

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-13-08150-PCT-DGC

Patrick Flanigan,,
Plaintiff,

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v.

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ORDER

OneWest Bank, F.S.B., et al.,
Defendants.

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On June 11, 2013, Defendants OneWest Bank, F.S.B. (“OneWest”) and Federal

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National Mortgage Association (“Fannie Mae”) removed this action from the Coconino

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County Superior Court. Doc. 1. Defendants filed a motion to dismiss on June 18, 2013.

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Doc. 5. Plaintiff Patrick Flanigan filed a motion to remand on July 9, 2013, claiming,

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among other things, that Defendants’ removal petition was untimely. Doc. 9. Plaintiff’s

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motion has been fully briefed. Docs. 13, 16. For the reasons stated below, the Court will

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grant Plaintiff’s motion and remand this case to the Coconino County Superior Court.

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I.

Legal Standards.

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A.

Removal Jurisdiction.

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Pursuant to the removal statute, 28 U.S.C. § 1441, any civil action brought in state

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court over which the federal district courts have original jurisdiction may be removed to

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the federal district court in the district where the action is pending. 28 U.S.C. 1441(a).

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Courts strictly construe the statute against removal jurisdiction, and the burden of

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establishing federal jurisdiction falls to the party invoking the statute.”

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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); California Ex Rel. Lockyer v. Dynegy,

Gaus v.

Dockets.Justia.com

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Inc., 375 F.3d 831, 838 (9th Cir 2004). Indeed, there is a “strong presumption” against

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removal and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of

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removal in the first instance.” Gaus, 980 F.2d at 566.

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B.

Notice Requirement.

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Defendants desiring to remove a civil action must file a notice of removal in the

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district court. Id., § 1446(a). “The notice of removal . . . shall be filed within 30 days

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after the receipt by the defendant, through service or otherwise, of a copy of the initial

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pleading setting forth the claim for relief upon which such action or proceeding is based.”

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Id., § 1446(b). Where the plaintiff does not waive his objections, “the time limit is

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mandatory[,] and a timely objection to a late petition will defeat removal.” Fristoe v.

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Reynolds Metals Co, 615 F.2d 1209, 1212 (9th Cir. 1980); Kuxhausen v. BMW Financial

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Servs. NA, LLC., 1136, 1142, n.4 (9th Cir. 2013) (quoting Fristoe); see also N. Illinois

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Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 273 (7th Cir. 1982) (“While the time

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limitation imposed by § 1446(b) is not jurisdictional, . . . it is a strictly applied rule of

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procedure and untimeliness is a ground for remand so long as the timeliness defect has

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not been waived.” (internal citations omitted); Seaton v. Jabe, 992 F.2d 79, 81 (6th Cir.

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1993) (same).

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II.

Discussion.

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Plaintiff argues that Defendants’ removal petition was untimely because it was not

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filed within 30 days of service of the summons and complaint. Doc. 9 at 2. Defendants’

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removal petition is ambiguous about when they received service. It alleges the following:

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“According to the Affidavit of Service, Plaintiff served Defendants on May 3, 2013.

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However, upon information and belief, Defendants did not receive a copy of the

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Summons and First Amended Complaint on May 3, 2013.” Doc. 1, ¶ 5. Defendants

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acknowledge in their response that Plaintiff filed two affidavits of service, the first

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alleging that OneWest was served on May 3, 2013, and the second alleging that Fannie

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Mae was served on May 6, 2013. Doc. 13 at 2. The copy of the summons attached to

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Defendants’ removal petition along with the complaint is signed by the Clerk of the

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Superior Court on May 2, 2013, and it is stamped with a receipt date of May 8, 2013.

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Doc. 1-3 at 3. Because all the evidence put forth regarding Defendants’ receipt of the

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summons and complaint indicates receipt dates more than 30 days before Defendants

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filed their petition for removal, and Defendants have not asserted either in their petition

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or their response when they actually received the summons and complaint, the Court

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finds that Defendants have failed to meet their burden of showing that their petition was

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timely. Gaus, 980 F.2d at 566 (“The ‘strong presumption’ against removal jurisdiction

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means that the defendant always has the burden of establishing that removal is proper.”)

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(internal citation omitted). The Court will grant Plaintiff’s motion to remand.1

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IT IS ORDERED:

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Plaintiff Patrick Flanigan’s motion to remand (Doc. 9) is granted.

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This case is remanded to the Coconino County Superior Court.

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3.

The Clerk of Court is directed to terminate this action.

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Dated this 13th day of August, 2013.

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Because the Court finds that Defendants have failed to show that their removal
petition was timely, it need not address Plaintiff’s additional arguments for remand.
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