Mary Amaral, et al v. Wachovia Mortgage Corporation et al

Filing 23

ORDER to SHOW CAUSE re: Dismissal, signed by Judge Oliver W. Wanger on 9/17/09. The Motion Hearing presently set for 9/21/2009 is VACATED; Show Cause Response due by 10/5/2009. (Verduzco, M)

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 A "district court ha[s] a duty to establish subject matter jurisdiction over the removed a c tio n sua sponte, whether the parties raised the issue or not." United Investors Life Ins. Co. v . Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). A sua sponte review of the n o tic e of removal (Doc. 2) filed by Defendant Carrington Mortgage Services, LLC (" C a rr in g to n " ) reveals a jurisdictional defect. Under 28 U.S.C. § 1446(a), a removal of a civil action from state to federal court is a c co m p lis h e d by filing "in the district court of the United States for the district and division w ith in which such action is pending a notice of removal signed pursuant to Rule 11 of the F e d e ra l Rules of Civil Procedure and containing a short and plain statement of the grounds f o r removal, together with a copy of all process, pleadings, and orders served upon such d ef en d an t or defendants in such action." (Emphasis added.) Generally, removal statutes are s tric tly construed against removal. Luther v. Countrywide Home Loans Servicing LP, 533 F .3 d 1031, 1034 (9th Cir. 2008). " F e d e ra l jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). In removed a c tio n s , "jurisdiction must be analyzed on the basis of the pleadings filed at the time of re m o v a l without reference to subsequent amendments." Sparta Surgical Corp. v. Nat'l Ass'n 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA MARY AMARAL, JOE AMARAL and DANNY 1:09-CV-00937-OWW-GSA AMARAL, ORDER TO SHOW CAUSE RE: Plaintiffs, DISMISSAL v. WACHOVIA MORTGAGE CORPORATION, a North Carolina Corporation; CARRINGTON MORTGAGE SERVICES, LLC; and DOES 150 inclusive, Defendants.

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o f Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998). "In determining the e x is t e n c e of removal jurisdiction based upon a federal question, [a court] must look to the c o m p la in t as of the time the removal petition was filed." Libhart v. Santa Monica Dairy Co., 5 9 2 F.2d 1062, 1065 (9th Cir. 1979). In its notice of removal, Carrington purports to remove a civil action "commenced in th e Superior Court in and for the County of Kings, entitled Mary Amaral, Joe Amaral and D a n n y Amaral v. Wachovia Mortgage Corporation, et al, as case number 09C0116." C a rrin g to n asserts that removal of this action is proper because federal claims in the statec o u rt complaint create federal question jurisdiction and supplemental jurisdiction exists over a lle g e d state law claims. In its notice of removal, Carrington states that "[a] true and correct c o p y of the Complaint is attached hereto as Exhibit A." Attached as Exhibit A, however, is a complaint filed by "Gerald Anudokem," not M a ry, Joe or Danny Amaral. In addition, the complaint was filed in the "UNITED STATES D IS T R IC T COURT NORTHERN DISTRICT OF CALIFORNIA," not Kings County S u p e rio r Court, and Carrington is not even a named defendant. It is evident that the c o m p la in t Carrington attached to its notice of removal is not the case which Carrington has a tte m p te d to remove, and no other document in the record contains a copy of the Amaral c o m p la in t. By failing to attach the Amaral complaint to its notice of removal, Carrington has n o t complied with 28 U.S.C. § 1446(a) and created a jurisdictional defect. C a rrin g to n lacks power to remove the Anudokem action, a case in which it is not a d e f e n d a n t. Accordingly, the court has no jurisdiction over that action. As to the Amaral a c tio n , Carrington, a purported defendant, has failed to accomplish removal of the action ­ th e Amaral complaint is not attached to the notice of removal, and the complaint is not o th e rw is e on file. In addition, whether federal question jurisdiction exists must be

d e te rm in e d from the face of the Amaral complaint. Without it, subject matter jurisdiction c a n n o t be determined and has not been established.

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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 f ile .

B o th Carrington and Defendant Wachovia Mortgage Corporation 1 have filed motions to dismiss claims in the Amaral complaint, and motions to strike a portion of the Amaral c o m p la in t. (Docs. 6 & 8-10.) Without accomplishing removal of the Amaral action and e s ta b l is h in g jurisdiction, however, these motions cannot be addressed.2 The hearing on these m o tio n s , presently set for September 21, 2009, is VACATED. Carrington is ordered to show c a u se , in writing, by October 5, 2009, why this case should not be dismissed for lack of ju ri s d ic tio n .

IT IS SO ORDERED. Dated: 9i274f September 17, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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Wachovia Mortgage Corporation is also not a defendant in the Anudokem action. Nor could these motions be analyzed properly without a copy of the complaint on

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