U.S. Bank National Association v. Strobel et al

Filing 16

ORDER ADOPTING IN PART THE MAGISTRATE JUDGE'S FINDINGS AND ADOPTING THE RECOMMENDATION TO GRANT PLAINTIFFS MOTION TO REMAND ACTION REMOVED FROM THECIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAII re 14 , 15 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/25/2014. Because Defendants' Notice of Removal was untimely, the court adopts the F&R to the extent it addresses the issue of Defendants' untimeliness and remands the case to state court. The Clerk of Court is directed to close this case and to send a certified copy of this order to the Clerk of the Circuit Court of the First Circuit, State of Hawaii." (emt, )CERTIFICATE OF SERVICEParticipants regist ered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Scott Allen Strobel and Stephanie Ann Strobel served by first class mail at the address of record on August 25, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE FOR
THE HOLDERS OF THE BEAR
STEARNS ALT-A TRUST 2006-3
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-3,

)
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
SCOTT ALLEN STROBEL, et al., )
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00167 SOM/BMK
ORDER ADOPTING IN PART THE
MAGISTRATE JUDGE’S FINDINGS
AND ADOPTING THE
RECOMMENDATION TO GRANT
PLAINTIFF’S MOTION TO REMAND
ACTION REMOVED FROM THE
CIRCUIT COURT OF THE FIRST
CIRCUIT, STATE OF HAWAII

ORDER ADOPTING IN PART THE MAGISTRATE JUDGE’S FINDINGS
AND ADOPTING THE RECOMMENDATION TO GRANT PLAINTIFF’S
MOTION TO REMAND ACTION REMOVED FROM THE CIRCUIT COURT
OF THE FIRST CIRCUIT, STATE OF HAWAII
I.

INTRODUCTION.
Defendants Scott Allen Strobel and Stephanie Ann

Strobel (collectively, “Defendants”) object to the Magistrate
Judge’s Findings and Recommendation to Grant Plaintiff’s Motion
to Remand Action Removed From the Circuit Court of the First
Circuit, State of Hawaii (“F&R”).

The court adopts the Findings

in part and the Recommendation in full.

The court remands this

case to state court.
II.

FACTUAL BACKGROUND.
On February 19, 2013, Plaintiff U.S. Bank National

Association, as Trustee for the Holders of the BEAR STEARNS ALT-A
Trust 2006-3 Mortgage Pass-Through Certificates, Series 2006-3,

filed a Complaint in the Circuit Court of the First Circuit in
the State of Hawaii.

ECF No. 10-3.

the Complaint on August 4, 2013.

Defendants were served with

ECF No. 10-4; ECF No. 10-5.

On April 7, 2014, Defendants filed their Notice of
Removal, which did not include a certificate of service.
1.

ECF No.

The court’s docket sheet indicates that, on or about April 8,

2014, the Clerk of Court mailed a Notice of Electronic Filing of
the Notice of Removal to Plaintiff’s counsel.

Given the lack of

a certificate of service, the Clerk used the Ala Moana Boulevard
address listed on the Complaint as Plaintiff’s counsel’s address.
Plaintiff’s counsel states that counsel did not receive the
Notice of Removal.

ECF No. 10-2, PageID # 100.

Thereafter,

there were a number of other docket entries in the case,
including one for an Order Setting Rule 16 Scheduling Conference,
with notices mailed by the Clerk of Court to Plaintiff’s counsel
at the Ala Moana Boulevard address.

See ECF Nos. 2, 3, 4, 5.

Plaintiff’s counsel failed to appear at the Rule 16
Scheduling Conference on May 12, 2014, causing the Magistrate
Judge to issue an Order To Show Cause why sanctions, including
dismissal of the case, should not issue.

ECF No. 6.

The Order

To Show Cause and the minutes of the May 12 scheduling conference
appear to have been mailed to Plaintiff’s counsel on or about May
13, 2014.

On June 2, 2014, Plaintiff responded to the Order To

Show Cause, explaining that Plaintiff’s counsel had not received

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the Notice of Removal or the Order Setting Rule 16 Scheduling
Conference.

ECF No. 8.

The address listed by Plaintiff’s

counsel on the response to the Order To Show Cause is a Bishop
Street address, not the Ala Moana Boulevard address that the
Clerk of Court had taken from the Complaint filed in state court
by Plaintiff’s counsel.
On June 13, 2014, Plaintiff filed its motion seeking a
remand of this action to state court.

Plaintiff argued that the

removal was untimely and that Defendants had failed to serve the
Notice of Removal.

ECF No. 10-1.

Defendants filed no opposition

to the motion to remand, which was addressed without a hearing.
Magistrate Judge Barry M. Kurren filed his F&R on July
22, 2014, recommending that Plaintiff’s motion be granted.

ECF

No. 14.
On August 4, 2014, Defendants filed objections to the
F&R, emphasizing their pro se status, discussing the procedural
history of this action, and contending that they had served the
Notice of Removal on Plaintiff.

ECF No. 15.

Defendants also

claimed that they had failed to respond to Plaintiff’s motion to
remand because they had not been served with the motion.1

1

Id.,

Defendants’ assertion that they were not served with the
motion to remand is not an objection to any specific portion of
the F&R. Defendants do not identify anything specific that the
alleged lack of service prevented them from arguing in what would
have been their opposition that they are unable to argue, or have
not argued, in their objections to the F&R.
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PageID # 141.
III.

STANDARD.
The court reviews de novo those portions of a

Magistrate Judge’s findings and recommendation to which an
objection is made.
Local Rule 74.2.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
The district court may accept those portions of

the findings and recommendation that are not objected to if it is
satisfied that there is no clear error on the face of the record.
Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003).
IV.

ANALYSIS.
A.

Timeliness of the Notice of Removal.

This court agrees with the Magistrate Judge that
Defendants’ Notice of Removal was untimely.

Under 28 U.S.C. §

1446(b), “[t]he notice of removal of a civil action or proceeding
shall be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or
proceeding is based.”

(Emphasis added).

Defendants were served

with the Complaint on August 4, 2013, but did not file their
Notice of Removal until April 7, 2014, far past the thirty-day
period permitted under 28 U.S.C. § 1446(b).
In response, Defendants state that they are proceeding
pro se and must, therefore, be treated with leniency and “held to
a less stringent standard.”

ECF No. 15, PageID # 138.
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Pro se

status, however, does not excuse the filing of a Notice of
Removal more than eight months late.
In their objections, Defendants also discuss matters
that occurred in the state court, but the events described are
not relevant to the timeliness of the Notice of Removal.
Defendants’ Notice of Removal was untimely, and the
action is remanded to state court on that basis.

Countrywide

Home Loans, Inc. v. Church of Hawaii Nei, Civ. No. 06-00250
JMS/LEK, 2006 WL 2338211, at *3 (D. Haw. Aug. 9, 2006) (“Since
Defendant filed the notice of removal more than thirty days after
service of the Complaint, remand to state court is
appropriate.”).
B.

Compliance with 28 U.S.C. § 1446(d).

The Magistrate Judge also determined that Defendants
had failed to comply with 28 U.S.C. § 1446(d), which requires a
defendant to provide written notice of a notice of removal to all
adverse parties “promptly after [its] filing.”

No certificate of

service is associated with the Notice of Removal.

See ECF No. 1.

In their objections to the F&R, Defendants state,
“Defendants did serve a copy of . . . a Notice of Removal,” but
they do not indicate when or how service was accomplished and
submit neither supporting documentation nor any declaration in
that regard.

ECF No. 15, PageID # 140.

It may be that, as the

Magistrate Judge found, Defendants failed to serve the Notice of

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Removal, but adoption of that finding is unnecessary to the
present ruling given the court’s determination that the removal
was untimely.

Furthermore, the court cannot tell from the record

whether Plaintiff’s counsel had provided an updated address to
Defendants before Defendants filed their Notice of Removal.

This

court has the Complaint, filed on February 19, 2013, bearing
counsel’s Ala Moana Boulevard address.

Counsel may, before the

case was removed, have notified the state court and Defendants of
counsel’s new Bishop Street address.

However, if that did not

occur, then the Notice of Removal might not have reached
Plaintiff’s counsel even if it had been served by Defendants.
Under the circumstances, this court hesitates to rely on a
failure to serve in ordering the case remanded.
Defendants’ objections regarding their pro se status
and the events occurring in state court offer them no support.
Proceeding pro se does not automatically excuse defects in
removal, and the cited events in state court are not relevant to
compliance with 28 U.S.C. § 1446(d).
C.

Timeliness of Plaintiff’s Motion to Remand.

Under 28 U.S.C. § 1447(c), “[a] motion to remand the
case on the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of the
notice of removal under section 1446(a).”

Plaintiff filed its

motion to remand this action based on defects other than subject

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matter jurisdiction on June 13, 2014, more than 30 days after the
Notice of Removal was filed on April 7, 2014.
However, Plaintiff contends that it was not served with
the Notice of Removal and did not receive any notice that
Defendants had removed the case until the Magistrate Judge filed
an Order to Show Cause after Plaintiff’s counsel failed to appear
at a Rule 16 Scheduling Conference.
see ECF No. 6.

ECF No, 10-1, PageID # 98;

It appears that the Order to Show Cause and the

minutes concerning that document were posted to the docket on May
13, 2014, and mailed to Plaintiff’s counsel on the same date.
See ECF No. 6

Even if the court treats May 13, 2014, the filing

date of the documents Plaintiff says informed Plaintiff of the
removal, as a substitute for the filing date of the Notice of
Removal for purposes of 28 U.S.C. § 1447(c), Plaintiff is a day
tardy.

Of course, as noted above, Defendants contend that they

did serve the Notice of Removal on Plaintiff’s counsel.

If

Defendants did serve the Notice of Removal, Plaintiff’s motion to
remand was about a month late.

Whether Plaintiff was or was not

served with the Notice of Removal by Defendants, Defendants’
tardiness in removing the case far exceeds Plaintiff’s tardiness
in seeking remand.

The court, weighing the differing periods of

tardiness, remands this case.
V.

CONCLUSION.
Because Defendants’ Notice of Removal was untimely, the

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court adopts the F&R to the extent it addresses the issue of
Defendants’ untimeliness and remands the case to state court.
The Clerk of Court is directed to close this case and to send a
certified copy of this order to the Clerk of the Circuit Court of
the First Circuit, State of Hawaii.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

U.S. Bank National Association, as Trustee for the Holders of the BEAR STEARNS
ALT-A Trust 2006-3 Mortgage Pass-Through Certificates, Series 2006-3 v.
Strobel, et al., Civ. No. 14-00167 SOM/BMK; ORDER ADOPTING IN PART THE
MAGISTRATE JUDGE’S FINDINGS AND ADOPTING THE RECOMMENDATION TO GRANT
PLAINTIFF’S MOTION TO REMAND ACTION REMOVED FROM THE CIRCUIT COURT OF THE
FIRST CIRCUIT, STATE OF HAWAII

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