U.S. Bank et al v. Terrenal

Filing 15

ORDER GRANTING 6 MOTION TO REMAND AND REMANDING ACTION. Signed by Judge Yvonne Gonzalez Rogers on 1/8/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/8/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 9 10 11 Northern District of California United States District Court 12 U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION AS TRUSTEE AS SUCCESSOR BY MERGER TO LASALLE BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR WAMU MORTGAGE PASSTHROUGH CERTIFICATES SERIES 2006AR13 TRUST, Plaintiff, Case No.: 12-CV-5540 YGR ORDER GRANTING MOTION TO REMAND AND REMANDING ACTION 13 14 15 16 vs. JOSE A. TERRENAL, JR., OFELIA TERRENAL, AND DOES 1 TO 20, Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 This case was removed from the Superior Court of the State of California, County of Alameda, where it was pending as an unlawful detainer action against pro se Defendant Ofelia Terrenal (“Defendant”).1 Defendant filed her notice of removal on August 28, 2012. (Dkt. No. 1, Notice of Removal [“NOR”].) Defendant removed the action pursuant to 28 U.S.C. §§ 1332, 1441, 1443, and 1446. (NOR ¶ 4.) Plaintiff U.S. Bank National Association, As Trustee, Successor In Interest To Bank Of America, National Association As Trustee As Successor By Merger To Lasalle Bank, National Association As Trustee For Wamu Mortgage Passthrough Certificates Series 2006-Ar13 Trust (“Plaintiff”) has filed a motion to remand on the grounds that: (1) removal was untimely because the Notice of Removal was filed more than 30 days after the date Defendant first received notice that 1 Defendant Ofelia Terrenal is self-represented. The other named defendant to the underlying action, Jose A. Terrenal, Jr. did not sign or otherwise join in the notice of removal and statements therein. 1 this action was pending; (2) the Court lacks subject matter jurisdiction based upon diversity; and (3) 2 the Court lacks subject matter jurisdiction based upon a federal question. Defendant has filed no 3 opposition to the motion as of the date of this Order. 4 The Court GRANTS the motion for remand.2 5 First, the Motion must be granted because the Notice of Removal was untimely filed. In 6 general, a defendant must file in the district court a notice of removal within 30 days after receipt of 7 the first pleading in the state action that sets forth a removable claim. 28 U.S.C. § 1446(b). Here, 8 Defendant's Notice of Removal was not filed within 30 days after the complaint was served on her. 9 The underlying action for residential unlawful detainer was commenced by the filing of a complaint Defendant was served with the summons and complaint in the underlying action on January 9, 2012. 12 Northern District of California in the State Court on December 30, 2011. The evidence submitted by Plaintiff indicates that 11 United States District Court 10 (Declaration of Richard Sontag, Exh. B, Dkt No. 6-2.) The Notice of Removal here was not filed 13 until October 29, 2012, over ten months later. Defendant argues in the Notice of Removal that a 14 later event triggered the removal, that event being "The Vacate Ruling." (NOR ¶ 26.) While no 15 specific date for that "ruling" is offered in the text of the Notice of Removal, Defendant attaches a 16 "Notice to Vacate" and Writ of Possession. (Dkt. No. 1-1.) Those documents indicate that the 17 Alameda County Sheriff received the Writ of Possession on May 23, 2012, and that the property was 18 required to be vacated no later than June 5, 2012. Defendant does not explain how these later events 19 would constitute the first pleading to set forth a removable claim. Even assuming that they could be 20 so construed, the removal notice was still untimely since it was filed several months after those dates. 21 In addition, the allegations in the complaint make clear that the amount in controversy does 22 not meet the jurisdictional threshold of $75,000.00 for diversity jurisdiction. While Defendant 23 argues that the jurisdictional amount should be considered to be greater because of the "pecuniary 24 result" of her loss of possession, she has not offered facts to support that argument. 25 26 27 2 28 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds that this motion is appropriate for decision without oral argument. Accordingly, the Court VACATES the hearing set for October 23, 2012. 2 1 Further, no federal question is presented in this action. The complaint asserts only one state 2 law claim for unlawful detainer. Thus, there is no basis for asserting federal claim jurisdiction. 3 Phillips Petroleum Co. v. Texaco, Inc. 415 U.S. 125, 127 (1974). 4 Accordingly, Plaintiff's Motion to Remand is GRANTED. 5 Plaintiff’s request for an award of attorneys’ fees is DENIED. 6 The Clerk of the Court is directed to REMAND this action to the Superior Court of the State of 7 8 9 10 California, County of Alameda. This Order terminates Docket No. 6. IT IS SO ORDERED. January 8, 2013 ____________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 11 Northern District of California United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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