Bank of New York Mellon v. Navarro et al

Filing 13

FINDINGS AND RECOMMENDATION THAT PLAINTIFF'S MOTION TO REMAND BE GRANTED re 10 - Signed by Judge BARRY M. KURREN on 9/7/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Manmeet Rana, Esq. and Ernesto S. Navarro served by first class mail at the addresses of record on September 7, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BANK OF NEW YORK MELLON, )
)
Plaintiff,
)
)
vs.
)
)
ERNESTO S. NAVARRO, et al.
)
)
)
Defendants.
)
______________________________ )

Civ. No. 12-00292 SOM-BMK
FINDINGS AND
RECOMMENDATION THAT
PLAINTIFF’S MOTION TO
REMAND BE GRANTED

FINDINGS AND RECOMMENDATION THAT PLAINTIFF’S MOTION TO
REMAND BE GRANTED
Before the Court is Plaintiff Bank of New York Mellon’s motion to
remand this action to state court. (Doc. # 10.) Defendants did not file an
opposition to the motion. After careful consideration of the motion, the supporting
memoranda, and the arguments of counsel, the Court FINDS and RECOMMENDS
that the motion be GRANTED.
The Court concludes that removal is improper because it lacks subject
matter jurisdiction over the case. Removal based on diversity jurisdiction is
improper because 28 U.S.C. § 1441(b)(2) provides that a “civil action otherwise
removable solely on the basis of the jurisdiction under section 1332(a) of this title
may not be removed if any of the parties in interest properly joined and served as

defendants is a citizen of the State in which such action is brought.” The notice of
removal lists Defendant Ernesto S. Navarro’s address as a Hawaii residence. (Doc.
# 1 at 1.) The Complaint also alleges that Defendants reside in Lahaina, Hawaii.
(Doc. # 1, Ex. 3 at 2, ¶ 1.) Additionally, the Court lacks federal question
jurisdiction because Plaintiff’s complaint is a foreclosure action, and does not
assert any federal claims. Defendants have not filed an opposition asserting that
they reside elsewhere or that Plaintiff’s complaint alleges federal claims.
Therefore, the Court FINDS and RECOMMENDS that Plaintiff’s motion to
remand be GRANTED because the Court lacks subject matter jurisdiction over the
case.
DATED: Honolulu, Hawaii, September 7, 2012.
IT IS SO FOUND AND RECOMMENDED.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Bank of New York Mellon v. Ernesto S. Navarro, et al., Civ. No. 12-00292 SOM-BMK,
FINDINGS AND RECOMMENDATION THAT PLAINTIFF’S MOTION TO REMAND BE
GRANTED
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