Theresa Choon Min v. Bank of America National Association et al.

Filing 6

MINUTE ORDER IN CHAMBERS by Judge Cormac J. Carney: Remanding case to Orange County Superior Court, Case number 30-02014-00720589 and DENYING AS MOOT PNC BANK'S MOTION to Dismiss Case 5 . Mailed certified copy of minute order, docket sheet and CV 103. Case Terminated. Made JS-6 (Attachments: # 1 CV 103) (twdb)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES – GENERAL
Case No. SACV 14-00910-CJC(JCGx)

Date: July 17, 2014

Title: MIN V. BANK OF AMERICA, N.A., ET AL.

PRESENT:
HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
Michelle Urie
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

None Present

N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:

None Present

PROCEEDINGS: (IN CHAMBERS) ORDER REMANDING ACTION TO
ORANGE COUNTY SUPERIOR COURT AND DENYING AS MOOT PNC
BANK’S MOTION TO DISMISS [filed 6/19/14]
Having read and considered the papers presented by the parties, the Court finds
this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78; Local
Rule 7-15. Accordingly, the hearing set for July 28, 2014 at 1:30 p.m. is hereby vacated
and off calendar.
On June 11, 2014, Defendant PNC Bank, N.A. removed to federal court the action
originally filed against it and Defendant Bank of America, N.A., among others, by
Plaintiff Theresa Choon Min in Orange County Superior Court. (See Dkt. No. 1 [“Notice
of Removal”].) PNC Bank does not attest, nor provide evidence to suggest, that prior to
removal, it sought and obtained the consent of Bank of America to remove the action.
(See generally Notice of Removal). Indeed, Bank of America instead removed the action
itself, thereby creating a separate federal action. (See Min v. Bank of America, No.
SACV 14-00898-CJC-DFM.)
Under 28 U.S.C § 1446, when a civil action is removed from state court, “all
defendants who have been properly joined and served must join in or consent to the
removal of the action.” “Where fewer than all the defendants have joined in a removal
action, the removing party has the burden under section 1446(a) to explain affirmatively
the absence of any co-defendants in the notice for removal.” Prize Frize Inc. v. Matrix
Inc., 167 F.3d 1261, 1266 (9th Cir. 1999). Here, Defendant Bank of America has not

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-00910-CJC(JCGx)

Date: July 17, 2014
Page 2

joined in the Notice of Removal, and PNC Bank has failed to explain its absence.
Accordingly, the removal notice is facially defective, and there has been no attempt to
cure the defect within the 30-day statutory period. Accordingly, the action is
REMANDED to Orange County Superior Court. PNC Bank’s motion to dismiss
Plaintiff’s Complaint is DENIED AS MOOT.

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MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk MU