Kathryn O. Smith et al v. Wells Fargo Bank, NA et al

Filing 7

MINUTES (IN CHAMBERS) ORDER TO SHOW CAUSE FOR FAILURE TO OBTAIN APPROVAL FOR REMOVAL FROM ALL DEFENDANTS by Judge Christina A. Snyder: Nowhere in Matrix Services' ("Matrix") notice of removal or in the accompanying papers is there an i ndication that the other named defendants have unanimously consented to removal. Further, there is no evidence that defendants Wells Fargo Bank, N.A. ("Wells") or National Title Ins., Co. ("National") were not served by plaintiffs. Accordingly, the Court ORDERS defendant Matrix to SHOW CAUSE within 20 days of the date of this order why the instant action should not be remanded for failure to timely remove. Court Reporter: N/A. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-6256-CAS (MANx)

Title

KATHRYN O. SMITH V. WELLS FARGO BANK, ET AL.

Present: The Honorable

Date

August 24, 2011

CHRISTINA A. SNYDER

RITA SANCHEZ
Deputy Clerk

N/A
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

N/A

N/A

Proceedings:

I.

(In Chambers:) ORDER TO SHOW CAUSE FOR FAILURE
TO OBTAIN APPROVAL FOR REMOVAL FROM ALL
DEFENDANTS

INTRODUCTION

On June 20, 2011, plaintiffs Kathryn O. Smith and Michael W. Ball filed the
instant action in Los Angeles County Superior Court against Wells Fargo Bank, N.A.
(“Wells”); Matrix Services (“Matrix”); National Title Ins., Co. (“National”); Assured
Lender Services, Inc. (“ALSI”); and Does 1-100 (collectively “defendants”). Plaintiffs
allege violations of numerous state and federal laws related to a loan originated by Wells
Fargo, including RICO, 18 U.S.C. §§ 1961 et seq., and the Truth in Lending Act, 15
U.S.C. § 1601 et seq.
On July 28, 2011, defendant Matrix removed this action to federal court. Matrix
was not joined by any other named defendant in this action.
II.

DISCUSSION

Civil actions brought in a state court generally may be removed to a federal district
court when the district court has original jurisdiction that arises under the laws of the
United States. 28 U.S.C. § 1441(b). Section 1446(b) requires notice of removal to be
filed within thirty (30) days of receipt, by the defendant, of the initial pleading setting
forth the claim for relief. All defendants must join in a removal petition or file written
consent to removal within the same thirty day period following service of the initial
pleading. See Prize Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1266 (9th Cir. 1999);
Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986).
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-6256-CAS (MANx)

Date

August 24, 2011

Title

KATHRYN O. SMITH V. WELLS FARGO BANK, ET AL.

There are exceptions to the unanimity rule. Nominal parties need not join in a
removal petition or file written consent to removal within the same thirty day period
following service of the initial pleading. See Prize Frize, Inc. v. Matrix, Inc., 167 F.3d at
1266. A defendant is a nominal party where its role is limited to that of a stakeholder or
depositary. See Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressman & Assistants'
Local 349, 427 F.2d 325, 327 (5th Cir. 1970). Further, the absence of those defendants
who were not properly served from a removal notice does not render the removal
defective. See Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011).
Matrix’s removal appears to be improper because the other defendants have not
unanimously joined in the removal. See Prize Frize, 167 F.3d at 1266. Matrix’s removal
papers, however, suggest that exceptions to the unanimity rule exist. Matrix asserts that
“[b]ased upon information and belief, neither Wells nor National have been served and/or
responded to the Complaint.” Def. Notice of Removal ¶ 6. This assertion is not
supported by any declaration or evidence that plaintiffs failed to properly serve Wells
and/or National. Without evidence the other named defendants have not been properly
served, these other defendants must join in Matrix’s removal petition or file written
consent to removal. See Prize Frize, 167 F.3d at 1266.
III.

CONCLUSION

Nowhere in Matrix’s notice of removal or in the accompanying papers is there an
indication that the other named defendants have unanimously consented to removal.
Further, there is no evidence that defendants Wells or National were not served by
plaintiffs. Accordingly, the Court ORDERS defendant Matrix to SHOW CAUSE within
twenty (20) days of the date of this order why the instant action should not be remanded
for failure to timely remove.
IT IS SO ORDERED.
00
Initials of
Preparer
CV-90 (06/04)

CIVIL MINUTES - GENERAL

:

00

RS
Page 2 of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-6256-CAS (MANx)

Title

KATHRYN O. SMITH V. WELLS FARGO BANK, ET AL.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Date

August 24, 2011

Page 3 of 3