Mann v. The Bank of New York Mellon Corp. et al

Filing 85

ORDER. IT IS HEREBY ORDERED that 8 , 21 Plaintiff's Motions to Remand are GRANTED. Signed by Chief Judge Gloria M. Navarro on 1/25/17. (Copies have been distributed pursuant to the NEF - cc: Certified Copy of Order and Docket Sheet Sent to State Court - MR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JOHN W. MANN, 4 5 6 7 8 9 10 ) ) Plaintiff, ) vs. ) ) THE BANK OF NEW YORK MELLON ) CORP.; CHEC 2007-C; FIRST AMERICAN ) TRUSTEE SERVICING SOL.; ) NATIONSTAR MORTGAGE, LLC, ) ) Defendants. ) ) Case No.: 2:16-cv-01538-GMN-PAL ORDER 11 Pending before the Court is a Petition to Remand to State Court, (ECF No. 8), filed by 12 13 pro se Plaintiff John Mann (“Plaintiff”).1 Defendant Nationstar Mortgage, LLC (“Defendant”) 14 filed a Response, (ECF No. 14), and Plaintiff filed a Reply, (ECF No. 44). Also pending before the Court is Plaintiff’s Motion to Remand, (ECF No. 21). 15 16 Defendant filed a Response, (ECF No. 29), and no reply was filed.2 For the reasons discussed 17 below, Plaintiff’s Motions to Remand are GRANTED. 18 I. BACKGROUND 19 Plaintiff originally filed his Complaint, (Compl., ECF No. 1-2), in the Eighth Judicial 20 District Court alleging “a non-compliant power of sale/trustee sale due to non-compliance of 21 Nevada Revised Statutes (§ 107.080, § 107.085, and § 107.086) (sic).” (Compl. 2:28–3:1). 22 Plaintiff ineffectively served Defendant through “U.S. certified mail, rather than through a 23 24 25 In light of Plaintiff’s status as a pro se litigant, the Court has liberally construed his filings, holding them to standards less stringent than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 2 Because the Petition to Remand, (ECF No. 8), and the Motion to Remand, (ECF No. 21) (collectively the “Motions to Remand”) are redundant, the Court considers the Motions to Remand together. 1 Page 1 of 4 1 process server via [Defendant’s] registered agent.” (Pet. for Removal ¶ 2, ECF No. 1). On June 2 28, 2016, Defendant removed the action, citing the Court’s diversity jurisdiction pursuant to 28 3 U.S.C. § 1332. (Id. ¶ 7). Specifically, Defendant states that Plaintiff is a citizen of Nevada, 4 Defendant is a foreign entity, and the amount in controversy exceeds $75,000. (Id.). On July 5 19, 2016, Plaintiff filed the instant Petition to Remand, (ECF No. 8). 6 II. LEGAL STANDARD 7 “Federal courts are courts of limited jurisdiction,” and “possess only that power 8 authorized by Constitution and statute, which is not to be expanded by judicial decree.” 9 Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (internal citations 10 omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden 11 of establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal citations 12 omitted). 13 The federal removal statute provides that a defendant may remove an action to federal 14 court based on federal question jurisdiction or diversity jurisdiction. 28 U.S.C. § 1441. “The 15 ‘strong presumption against removal jurisdiction means that the defendant always has the 16 burden of establishing that removal is proper,’ and that the court resolves all ambiguity in favor 17 of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 18 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)). 19 “If at any time before final judgment it appears that the district court lacks subject matter 20 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). However, federal district courts 21 cannot remand sua sponte for non-jurisdictional defects in procedure. Kelton Arms 22 Condominium Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1191–93 (9th Cir. 23 2003). 24 25 Under 28 U.S.C. § 1332, complete diversity of citizenship is required, and each plaintiff must be a citizen of a different state than each defendant. Morris v. Princess Cruises, Inc., 236 Page 2 of 4 1 F.3d 1061, 1067 (9th Cir. 2001). Additionally, for purposes of removal, “the citizenship of 2 defendants sued under fictitious names shall be disregarded.” 28 U.S.C. § 1441(b)(1). 3 III. DISCUSSION Pursuant to 28 U.S.C. § 1446(b), a notice of removal must be filed “within thirty days 4 5 after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading 6 setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. 7 § 1446(b). In Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), the 8 United States Supreme Court interpreted the thirty-day window outlined in 28 U.S.C. § 1446(b) 9 to begin once the defendant is notified of the action and brought under a court’s authority by 10 formal process. See Murphy Bros., 526 U.S. at 347–48. 11 Here, Defendant states that it was not properly served. (See Pet. for Removal ¶¶ 1, 2, 6 12 (stating that Plaintiff “ineffectively attempted to serve Defendant”); (see also id. at 2 n.2 13 (“Plaintiff’s attempted service of his complaint and amended complaint via certified mail fails 14 as a matter of law, and [Defendant] reserves all rights with respect to challenging the 15 sufficiency of service of process in this matter.”)). Under the Murphy Brothers logic, the 16 removal window has not begun until Plaintiff properly serves Defendant by formal process. 17 Accordingly, Defendant is not yet a party to this action, and Defendant has no standing to 18 remove. Moreover, as Defendant has the burden of disproving the strong presumption against 19 removal jurisdiction, it bears the burden of showing that it was, indeed, served properly in this 20 action. Defendant has shown the contrary. Therefore, because Defendant was improperly 21 served, the Court must remand this action to state court. 22 /// 23 /// 24 /// 25 /// Page 3 of 4 1 2 3 4 IV. CONCLUSION IT IS HEREBY ORDERED that Plaintiff’s Motions to Remand, (ECF Nos. 8, 21), are GRANTED. 25 DATED this _____ day of January, 2017. 5 6 7 8 ___________________________________ Gloria M. Navarro, Chief Judge United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 of 4

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