Zandonatti v. Colorado Federal Savings Bank et al

Filing 20

ORDER denying 9 Motion to Remand to State Court; Court adopts Magistrate Judge's 18 Report and Recommendations. Signed by Judge Raner C Collins on 11/16/2010. (GCP)

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-GEE Zandonatti v. Colorado Federal Savings Bank et al Doc. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On October 13, 2010, the Honorable Glenda E. Edmonds, United States Magistrate Judge, filed a Report and Recommendation (Recommendation). (Doc. 18). Magistrate Edmunds recommended that the Court deny Plaintiff's Motion for Remand to State Court (Doc. 9), because this Court does have federal question jurisdiction and the notice of removal does not violate the unanimity rule. Plaintiff filed objections to the Recommendation on October 29, 2010. (Doc. 19). Plaintiff argues that the Defendants were not unanimous in their request for removal, because all Defendants were served at the time of the Notice of Removal and the avowal of consent contained in the Notice is defective. Plaintiff also attached affidavits of service for Colorado Federal Savings Bank and Quality Loan Service Corp. (Doc. 19 Ex. 1). Whether or not all Defendants were served prior to the Notice of Removal is immaterial, since all Defendants consented to removal. The Ninth Circuit Court of Appeals vs. Colorado Savings Banks; et al., Defendants. David Zandonatti, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-441-TUC-RCC ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 addressed the issue of a the form of a co-defendant's consent to removal in Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208 (9th Cir. 2009). The Court adopted the reasoning of the Sixth Circuit, holding that "[o]ne defendant's timely removal notice containing an averment of the other defendant's consent and signed by an attorney of record is sufficient." Id. at 1225. Defendant EMC avowed in its Notice of Removal that "[u]undersigned counsel's staff has spoken to counsel for Colorado Federal and QLS, and confirmed that they consent to the removal," and counsel of record for EMC signed the document. (Doc. 1). Therefore, all Defendants joined in the removal, and the rule of unanimity was not violated. The Court considers the Recommendation (Docket No.19) to be thorough and wellreasoned. After a thorough and de novo review of the record, the Court will adopt the Recommendation of Magistrate Judge Edmunds as to the issue of federal question jurisdiction. As to the issue of unanimity, the Court, based on the discussion contained in this order, will adopt the Recommendation's finding of unanimity. The Court will not adopt the reasoning in the Recommendation as to the issue of unanimity. This is not because the it is flawed, but because the additional evidence provided by Plaintiff requires the Court to examine the issue anew. Accordingly, IT IS ORDERED that the Court adopts Magistrate Judge Edmunds's Report and Recommendation (Doc. 19), subject to the conditions outlined above. IT IS FURTHER ORDERED that Plaintiff's Motion for Remand (Doc. 9) is denied. DATED this 16th day of November, 2010. -2-

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