Palmeira v. CIT Bank, N.A.; et. al.
ORDER ADOPTING AS MODIFIED THE FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFFS' MOTION FOR AN ORDER OF REMAND re 26 Findings and Recommendations.. Signed by JUDGE ALAN C. KAY on 10/24/2017. The Court ADOPTS the Findings and Recommendation to Grant Plaintiffs' Motion for an Order of Remand, as modified by this Order. Plaintiffs' Motion for Remand is GRANTED. Accordingly, this action will be remanded to the Circuit Court of the Fifth Circuit, St ate of Hawaii. (eps, )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).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
AURALEE J. PALMEIRA and ADELE )
) Civ. No. 17-00275 ACK-RLP
CIT BANK, N.A., formerly
known as ONEWEST BANK, FSB;
FEDERAL HOME LOAN MORTGAGE
CORPORATION; KALEI B.
COLRIDGE; and DOE DEFENDANTS
ORDER ADOPTING AS MODIFIED THE FINDINGS AND RECOMMENDATION TO
GRANT PLAINTIFFS’ MOTION FOR AN ORDER OF REMAND
For the reasons set forth below, the Court adopts as
modified the Findings and Recommendation to Grant Plaintiffs’
Motion for an Order of Remand, ECF No. 26, issued by Magistrate
Richard L. Puglisi on August 10, 2017.
On June 30, 2016, Plaintiffs Auralee J. Palmeira and
Adele Palmeira-Shinn (“Plaintiffs”) filed this action in the
Circuit Court of the Fifth Circuit, State of Hawaii (“State
See Notice of Removal ¶ 1, ECF No. 1.
September 27, 2016, Plaintiffs filed a First Amended Complaint
in the State Court Action.
Id. ¶ 2.
CIT Bank, f/k/a OneWest
Bank, N.A. f/k/a OneWest Bank, FSB, as well as Federal Home Loan
Mortgage Corp., (collectively, the “Mortgagee Defendants”) filed
their answer to the First Amended Complaint on October 27, 2016.
Id. ¶ 3.
Defendant Kalei B. Colridge was served, through her
attorney, on May 23, 2017.
Id. ¶ 15.
Defendant Colridge filed her Notice of Removal based
on diversity jurisdiction on June 9, 2017, 17 days after being
See id. ¶¶ 13, 15.
In the Notice, Defendant Colridge
alleges that the Mortgagee Defendants answered the First Amended
Complaint in 2016.
Id. ¶ 3.
However, the Notice of Removal
does not indicate that the Mortgagee Defendants consented to or
joined in the removal.
See generally id.
On June 26, 2017, the
Mortgagee Defendants filed a notice consenting to and joining in
the Notice of Removal.
ECF No. 7 (“Consent and Joinder”).
the Consent and Joinder, the Mortgagee Defendants state that
Defendant Colridge’s attorney telephonically obtained their
consent to remove the case on June 7, 2017, and that prior to
that conversation the Mortgagee Defendants were not aware that
complete diversity existed.
Id. at 3; Declaration of Judy A.
Tanaka ¶¶ 4-5, ECF No. 7-1 (“Tanaka Decl.”).
On June 27, 2017,
Defendant Colridge filed a “supplement” to her notice of removal
regarding these same facts and arguing that the Mortgagee
Defendants timely requested removal through their Consent and
ECF No. 11 ¶¶ 4-6.
Plaintiffs filed their motion to remand to state court
on July 7, 2017.
ECF No. 21.
Defendant Colridge filed her
opposition on July 21, 2017, to which the Mortgagee Defendants
filed a substantive joinder.
their reply on August 4, 2017.
ECF Nos. 23-24.
ECF No. 25.
On August 10, 2017,
Judge Puglisi issued Findings and Recommendation to Grant
Plaintiffs’ Motion for an Order of Remand.
ECF No. 26 (“F&R”).
In the F&R, Judge Puglisi found that the Notice of
Removal was procedurally defective because it was silent as to
the Mortgagee Defendants’ consent, even though consent had
apparently been previously obtained.
F&R at 5-7.
recognizing conflicting authority, Judge Puglisi also found that
any defects in the Notice had to be cured within the 30-day
removal period, but that the Consent and Joinder and the
supplement had been filed outside of that window.
Id. at 8-10.
Finally, Judge Puglisi also rejected the argument that removal
was timely because Defendant Colridge’s Notice of Removal was
the first paper from which the Mortgagee Defendants could
ascertain the case was removable since the Mortgagee Defendants
did not thereafter file a notice of removal.
Id. at 10-11.
On August 24, 2017, Defendant Colridge filed
objections to Judge Puglisi’s F&R (“Obj.”), to which the
Mortgagee Defendants filed a substantive joinder.
ECF Nos. 27-
Plaintiffs did not file a response to the objections.
“This Court treats a motion to remand as a dispositive
motion, requiring the issuance of a findings and recommendation
by the magistrate judge.”
PSC Indus. Outsourcing, LP v.
Burlington Ins. Co., Civ. No. 10-00751, ACK-BMK, 2011 WL
1793333, at *3 (D. Haw. May 10, 2011) (citing Keown v. Tudor
Ins. Co., 621 F. Supp. 2d 1025, 1029 (D. Haw. 2008)).
When a party objects to a magistrate judge’s findings
or recommendation, the district court must review de novo those
portions to which the objections are made and “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
§ 636(b)(1)(C); see also United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district court must
review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.” (emphasis in
Under a de novo standard, a district court reviews
“the matter anew, the same as if it had not been heard before,
and as if no decision previously had been rendered.”
DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006).
district court need not hold a de novo hearing; however, it is
the court’s obligation to arrive at its own independent
conclusion about those portions of the magistrate judge’s
findings or recommendation to which a party objects.
States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989).
It is within the district court’s discretion to
“receive further evidence, recall witnesses, or recommit the
matter to the magistrate judge with instructions.”
Pursuant to Local Rule 74.2, this Court “may consider the
record developed before the magistrate judge,” but the Court
must make its “own determination on the basis of that record.”
Defendant Colridge objects to the F&R on two bases:
(1) whether consent to removal by earlier-served defendants must
be filed within the 30-day time period for removal; and (2)
whether this case was timely removed through the Mortgagee
Defendants’ Consent and Joinder in which they assert independent
grounds for removal based on Defendant Colridge’s Notice of
Obj. at 2-4.
Defendant Colridge does not challenge
Judge Puglisi’s determination that the fact that consent was
obtained prior to removal is insufficient on its own. 1
F&R at 6.
Nor does this Court see any clear error in this finding. See
Fellhauer v. City of Geneva, 673 F. Supp. 1445, 1448 (N.D. Ill.
1987) (“The removal statutes require that all defendants
communicate their consent to the court - not to one another.”)
(emphasis in original); see also Cotterill v. City & Cty. of
S.F., No. C 08-02296 JSW, 2008 WL 3876153, at *3 (N.D. Cal. Aug.
19, 2008) (discussing that courts require that consent to be
provided to the court but that some allow consent to be oral “so
long as it is a ‘clear and unambiguous’ submission”).
The Court disagrees with Defendant Colridge’s
objections and accordingly ADOPTS Magistrate Judge Puglisi’s
Findings and Recommendation, as modified herein.
Defendant Colridge Incorrectly Asserts That The Mortgagee
Defendants Timely Consented to Removal
In a multi-defendant action, a later-served defendant
has a right of removal separate from that of an earlier-served
See 28 U.S.C. § 1446(b)(2).
The Ninth Circuit had
adopted this rule, known as the later-served defendant rule,
prior to its codification in the 2011 amendments to 28 U.S.C. §
1446 (effective January 6, 2012).
See Destfino v. Reiswig, 630
F.3d 952, 955-56 (9th Cir. 2011).
The court also held that each
defendant had 30 days from service on him or her to remove the
action, without regard to whether another defendant had been
Id. at 956.
The statute now explicitly allows
each defendant 30 days after receipt or service of an initial
pleading or summons to file a notice of a removal.
28 U.S.C. §
The Ninth Circuit has also held that the time
limits in § 1446(b) are mandatory and that “‘a timely objection
to a late petition will defeat removal.’”
Smith v. Mylan Inc.,
761 F.3d 1042, 1045 (9th Cir. 2014) (quoting Fristoe v. Reynolds
Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980)).
Under the “rule of unanimity,” all defendants who have
been properly joined and served must join in or consent to
28 U.S.C. § 1446(b)(2)(A).
If defendants are served
at different times, when a later-served defendant files a notice
of removal, “any earlier-served defendant may consent to the
removal even though that earlier-served defendant did not
previously initiate or consent to the removal.”
A defendant may join in or consent to the
removal within the notice of removal or in a separate document
reflecting joinder or consent.
See Proctor v. Vishay
Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009).
Here, Defendant Colridge was served with the First
Amended Complaint on May 23, 2017 and filed her Notice of
Removal on June 9, 2017.
Notice of Removal, ECF No. 1 & ¶ 15.
“[T]he removing party has the burden under section 1446(a) to
explain affirmatively the absence of any co-defendants in the
notice of removal.”
Prize Frize, Inc. v. Matrix (U.S.) Inc.,
167 F.3d 1261 (9th Cir. 1999) (superseded by statute, as stated
in Abrego Abrego v. Dow Chemical Co., 443 F.3d 676, 681 (9th
However, Defendant Colridge’s Notice of Removal is
silent as to the absence of the Mortgagee Defendants, see ECF
No. 1, and was not amended before the statutory 30-day period
for removing the case expired on June 22, 2017.
Defendants did not file their Consent and Joinder until June 26,
ECF No. 7.
As such, the Notice of Removal was
The issue before the Court is whether the Mortgagee
Defendant’s Consent and Joinder, filed 17 days after the Notice
of Removal was filed and 34 days after Defendant Colridge was
served with the amended complaint, timely cured the procedural
defect in the Notice of Removal.
If the defect in consent was
not timely cured, this matter is subject to remand.
Lewis v. HSBC Bank USA, N.A., No. CV 17-00234 DKW-KSC, 2017 WL
3671279, at *9 (D. Haw. Aug. 25, 2017) report and recommendation
adopted, No. CV 17-00234 DKW-KSC, 2017 WL 4019416 (D. Haw. Sept.
12, 2017); US Bank Nat. Ass'n v. Taylor, No. CV 15-00018 DKWKSC, 2015 WL 1057119, at *3-4 (D. Haw. Mar. 10, 2015); Allen v.
Wells Fargo Bank NA, No. CV-14-08176-PCT-DLR, 2014 WL 11497805,
at *3 (D. Ariz. Nov. 14, 2014); Boyett Constr., Inc. v. Allianz
Glob. Risks U.S. Ins. Co., No. 2:14-CV-00607-GEB-AC, 2014 WL
2093569, at *1-2 (E.D. Cal. May 19, 2014).
There is conflicting law on the deadline for filing
consent of earlier-served defendants, even within this District,
as Judge Puglisi noted.
F&R at 8-9 & n.2.
The Ninth Circuit
does not appear to have spoken as to when consent is due in
light of the 2011 amendments.
See Pattison v. Nevada, No. 3:14-
cv-00020-MMD-VPC, 2014 WL 2506467, at *1 (D. Nev. June 3, 2014)
(“[T]he question of when a defendant’s separate joinder or
consent must be filed to be timely does not appear to be
definitively established in the Ninth Circuit, particularly
following recent amendments to the removal procedure statute.”).
Plaintiffs contend that consent must have been filed within the
30-day time period for removal, i.e. by June 22, 2017.
at 2, ECF No. 21-1.
Defendant Colridge asserts that the consent
was timely filed as there is either no deadline for consent or
at minimum consent may be filed within 30 days of the date of
the notice of removal.
Obj. at 3.
First, some courts have found that there is no
deadline for filing consent.
In Couzens v. Donohue, the Eighth
Circuit found timely a consent filed 31 days after a laterserved defendant filed its notice of removal, and one day after
the plaintiff filed his motion to remand.
(8th Cir. 2017).
854 F.3d 508, 515
In so holding, the Eighth Circuit appeared to
primarily rely on the fact that in the amendments to § 1446,
Congress specified the form of notice and time frame for removal
by each defendant in a multiple-defendant action, but chose not
to do so for the form of or time for consent of earlier-served
Id. at 514 (quoting Griffoen v. Cedar Rapids & Iowa
City Ry. Co., 785 F.3d 1182, 1187 (8th Cir. 2015)).
courts have similarly relied on Congress’s lack of specificity
regarding the timing of consent to find that there is no
codified time period for consenting to removal.
Gaynor v. Miller, 205 F. Supp. 3d 935, 941 (E.D. Tenn. 2016)
(finding that while the 2011 amendments codified the last-served
defendant rule which the Sixth Circuit had previously adopted,
they did not codify the requirement that earlier-served
defendants consent within 30 days of removal).
This Court disagrees that Congress’s apparent silence
on the timing of consent means that there is no deadline.
legislative history of the 2011 amendment indicates that the
rule was not intended to “allow an indefinite period for
H.R. Rep. No. 112–10, at 14 (2011); see Chakra 5,
Inc. v. City of Miami Beach, 968 F. Supp. 2d 1210, 1214 (S.D.
Fla. 2013) (quoting H.R. Rep. No. 112–10 and rejecting argument
that there is no deadline for consent); see also Lewis, 2017 WL
3671279, at *7 (Section 1446(b)(2)(C) “does not provide an openended opportunity to consent to removal at any time during the
course of a case.”).
Rather, Congress’s intent was to
“provide for equal treatment of all defendants in their
ability to obtain Federal jurisdiction over the case against
them without undermining the Federal interest in ensuring that
defendants act with reasonable promptness in invoking Federal
H.R. Rep. No. 112–10, at 14.
Regardless, Defendant Colridge argues that even if
there is a deadline for filing consent, it is 30 days after
receipt of the notice of removal, which still renders the
Mortgagee Defendants’ Consent and Joinder timely.
See Obj. at
Courts finding a deadline for consent appear to specify
either 30 days after the notice of removal is filed or the
initial 30-day period in which the later-served defendant may
file a notice of removal.
One court opting for the former deadline felt that
requiring consent within 30 days after the notice of removal was
“the fairest for all concerned” as it allowed an earlier-served
defendant a reasonable time to determine whether to consent and
still allow the party challenging removal to raise procedural
defects at the time a motion to remand must be filed.
2014 WL 2506467, at *3.
The court also felt that this rule was
“consistent with the intent of the statute to facilitate rather
than impair the ability of defendants in multiple-defendant
cases to remove actions and consent to removal.”
in this district also appears to have adopted this rule but with
no analysis, merely noting that “‘all defendants must either
join or provide within thirty days consent to the removal
Barglowski v. Nealco Int’l LLC, Civ. 16-00209 LEK-
KSC, 2016 WL 5107043, at *4 (D. Haw. Sept. 20, 2016) (quoting
Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F. Supp. 2d 1050,
1052 (N.D. Cal. 2009)).
Courts requiring that consent be filed within the 30day period for removal by the later-served defendant have done
so for various reasons.
One court in this district found,
relying on Prize Frize, that “Ninth Circuit precedent clearly
establishes that remand is appropriate when defects in removal
notices are not cured within the 30-day period prescribed by §
Lewis, 2017 WL 3671279 at *9.
The Ninth Circuit held in
Prize Frize that defects in removal notices must be cured within
the 30-day period for joinder and that the failure to timely
join all defendants is grounds for remand.
See 167 F.3d at
The court in Lewis thus found remand appropriate,
especially in light of “the Court’s obligation to resolve any
doubts about the propriety of removal in favor of remanding the
case to state court....”
2017 WL 3671279 at *9 (finding consent
untimely even if the court adopted the rule allowing for it to
be filed within 30 days after the notice of removal).
Defendant Colridge challenges reliance on Prize Frize,
as it predates the 2011 amendments.
Obj. at 10.
legislative history of the amendments does not “indicate
Congress meant to overhaul judicial precedent”.
Chakra 5, 968
F. Supp. 2d at 1214 (citing H.R. Rep. No. 112-10, at 14).
Rather, “the main objective” of the amendments to paragraph
(b)(2) was “to eliminate confusion surrounding the timing of
removal when defendants are served at different times.”
Rep. No. 112-10, at 14.
Congress did not explicitly address
timing for consent or for curing other removal defects.
such circumstances, this Court is unwilling to read the 2011
amendments as abrogating sub silentio existing judicial
precedent regarding the deadline by which defects in notices of
removal must be cured.
Other courts finding that consent must be filed within
the 30-day removal period have additionally noted that nothing
in the amendments alters the rule that the removal statute
should be strictly construed and enforced in favor of state
Mire v. Oxnley, No. 17-CV-620, 2017 WL
4128859, at *2 (W.D. La. Aug. 9, 2017), report and
recommendation adopted sub nom. Mire v. Onxley, No. 2:17-CV-620,
2017 WL 4128854 (W.D. La. Sept. 18, 2017) (also noting that it
would be “absurd” to not have a deadline for consent because
defendants would always be able to amend and provide proper
consent); see also Casey v. Xpedx, No. CV 16-5135, 2016 WL
6962576, at *2 (E.D. Pa. Nov. 28, 2016) (finding each defendant
had to file a consent within the 30-day removal period).
One court has also argued that the language of §
1446(b)(2)(A) suggests that a removing defendant must secure the
consent of other served defendants by the time of the filing of
the notice of removal.
Alston v. Wells Fargo Bank, Nat'l Ass'n,
No. CV TDC-17-1085, 2017 WL 2839629, at *3 (D. Md. June 29,
The court focused on the temporal aspect of the
provision, requiring that defendants “must join in or consent to
the removal of the action” “[w]hen a civil action is removed.”
Id. at *2 (emphasis in Alston).
The Court concludes that consent must be filed within
the 30-day period for removal to be timely, not within 30 days
of when the notice of removal was filed.
To the extent that the
conflicting authorities discussed above create doubt as to the
deadline for consent, “[t]he removal statute is strictly
construed, and any doubt about the right of removal requires
resolution in favor of remand.”
Moore-Thomas v. Alaska
Airlines, Inc., 553 F.3d 1241 (9th Cir. 2009) (citing Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).
here, strict construction in favor of remand suggests that
consent be filed by the earliest date, which is the 30-day
period for removal.
Allowing additional time to obtain and file
consent for removal would disfavor remand.
In addition, the defendant has the burden of
establishing removal is proper.
Consent of earlier-served
co-defendants is required for removal.
28 U.S.C. §
Defects in removal requirements must be cured
within the 30-day period for removal, or removal is improper.
See Prize Frize, 167 F.3d at 1266.
These statements taken
together suggest that lack of consent is a defect which must be
cured within the 30-day removal period in order for removal to
See Lewis, 2017 WL 3671279, at *8-9.
Finally, this Court disagrees with the Pattison court
that allowing consent to be filed within 30 days after the
notice of removal is “the fairest for all concerned.”
2014 WL 2506467 at *3.
Under 28 U.S.C. § 1447(c), a plaintiff
also only has 30 days after the notice of removal is filed to
move to remand on the basis of any defect other than lack of
subject matter jurisdiction.
Thus, if a co-defendant were to
wait until the 30th day after the notice of removal was filed to
indicate his consent, the plaintiff would also have to wait
until that 30th day to know if a motion to remand could be filed
for lack of consent.
Under such circumstances, the co-
defendant’s consent and the plaintiff’s motion to remand would
be due on the same day.
It is unrealistic to expect plaintiffs
to wait to see if earlier-served defendants file an eleventhhour consent to draft a motion to remand.
filed at the last minute would also waste any effort previously
put towards drafting in advance a motion on that basis.
rule thus puts plaintiffs at a disadvantage and invites waste of
resources and unnecessary motions practice.
Requiring consent to be filed within the 30-day period
for removal also does not conflict with the intent of the 2011
Congress sought to provide fairness to later-served
defendants by giving them their own opportunity to remove, even
if earlier served defendants did not choose to do so.
No. 112–10, at 14.
Requiring a later-served defendant to obtain
consent within 30 days is not an unfair burden.
simply requires them to “act with reasonable promptness” in the
course of “invoking Federal jurisdiction” through a motion to
remand, as Congress intended.
Nor does requiring consent to be filed within the 30day removal period necessarily rush earlier-served defendants,
as the Pattison court suggests.
See 2014 WL 2506467, at *3.
Nothing prevents a later-served defendant from notifying
earlier-served defendants of their intention to remove before
filing a notice of removal and attempting to obtain consent at
Indeed, in this case, Defendant Colridge obtained
consent from the Mortgagee Defendants even before filing her
Notice of Removal, which occurred only 17 days after being
Defendant Colridge thus had the fair opportunity
Congress envisioned to invoke federal jurisdiction.
failed to state in her Notice of Removal that she in fact had
consent of the Mortgagee Defendants and failed to timely remedy
this procedural defect does not render the requirement that
consent be filed within the 30-day period for removal unfair or
contrary to § 1446 or congressional intent.
In light of the foregoing, the Court agrees with Judge
Puglisi’s conclusion in the F&R that Defendant Colridge’s Notice
of Removal was procedurally defective and that those defects
were not timely cured as the Mortgagee Defendants’ Consent and
Joinder was filed outside of the 30-day statutory time period
See F&R at 10.
Defendant Colridge Incorrectly Asserts that the Mortgagee
Defendants’ Consent Should Be Construed as a Timely-Filed
Notice of Removal
Defendant Colridge additionally contends that the
Mortgagee Defendants’ Consent and Joinder, filed 17 days after
her Notice of Removal, should be construed as a timely filed
notice of removal in its own right.
Obj. at 11-12.
If a case
stated by the initial pleading is not removable, a defendant may
still file a notice of removal within 30 days after receipt “of
an amended pleading, motion, order, or other paper from which it
may first be ascertained that the case is one which is or has
28 U.S.C. § 1446(b)(3).
relies on the fact that in the Consent and Joinder, the
Mortgagee Defendants stated that they were unaware the case was
removable until she filed her Notice of Removal on June 9, 2017.
Obj. at 12; see also ECF No. 7 at 4-5; Tanaka Decl. ¶¶ 4-5.
However, in their substantive joinder to Defendant
Colridge’s opposition to Plaintiffs’ motion to remand, the
Mortgagee Defendants explicitly confirmed that they “did not, in
fact, file a second notice of removal.”
ECF No. 24 at 8.
Rather, “although they had an independent basis for removal,
they timely filed a ‘consent’ to and ‘joinder’ in Defendant
Colridge’s Notice of Removal.”
Given the Mortgagee
Defendants’ plainly stated intention not to file a second notice
of removal, despite asserting that an independent basis for
doing so existed, the Court will not construe their Consent and
As such, even assuming that the filing of Defendant
Colridge’s Notice of Removal on June 9, 2017 triggered a 30-day
period in which the Mortgagee Defendants could file their own
notice of removal, they did not do so.
Thus, because the only
notice of removal filed in this matter was procedurally
defective and not timely cured, as discussed in Section I, the
Court finds that remand is warranted.
For the foregoing reasons, the Court ADOPTS the
Findings and Recommendation to Grant Plaintiffs’ Motion for an
Order of Remand, as modified by this Order.
for Remand is GRANTED.
Accordingly, this action will be
remanded to the Circuit Court of the Fifth Circuit, State of
IT IS SO ORDERED.
Honolulu, Hawaii, October 24, 2017.
Alan C. Kay
Sr. United States District Judge
Palmeira, et al. v. CIT Bank, et al., Civ. No. 17-00275 ACK-RLP,
Order Adopting as Modified the Findings and Recommendation to
Grant Plaintiffs’ Motion for an Order of Remand.
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