O'Connor v. National Default Servicing Corporation et al

Filing 47

ORDER DENYING 10 Motion to Remand to State Court. Signed by Judge Larry R. Hicks on 5/21/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Before the court is plaintiff Stephanie O’Connor’s (“O’Connor”) motion to remand.

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STEPHANIE O’CONNOR,

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Plaintiff,

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v.

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NATIONAL DEFAULT SERVICING
CORPORATION; et al.,

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Defendants.

3:11-cv-0915-LRH-VPC
ORDER

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Doc. #10.1 Defendant BankUnited, FSB (“BankUnited”) filed an opposition (Doc. #17) to which

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O’Connor replied (Doc. #25).

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I.

Facts and Procedural History

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In April 2005, O’Connor purchased real property through a mortgage note and deed of trust

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executed by BankUnited. O’Connor defaulted on the property and defendants initiated non-judicial

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foreclosure proceedings.

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Subsequently, O’Connor filed a complaint in state court against defendants. Doc. #1,

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Exhibit 2. Defendant UnitedBank removed the action to federal court based upon diversity

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jurisdiction. Doc. #1. Thereafter, O’Connor filed the present motion to remand. Doc. #10.

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Refers to the court’s docket entry number.

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II.

Legal Standard

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Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district

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courts of the United States have original jurisdiction, may be removed by the defendant or the

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defendants, to the district court of the United States for the district and division embracing the

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place where such action is pending." 28 U.S.C. § 1441(a). A district court has original jurisdiction

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over civil actions where the suit is between citizens of different states and the amount in

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controversy, exclusive of interest and costs, exceeds $75,000.00. 28 U.S.C. § 1332(a). In a diversity

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case, if a complaint does not specify the amount of damages, “the removing defendant bears the

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burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds

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$[75],000.00.” Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996).

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Removal of a case to a district court may be challenged by motion. 28 U.S.C. § 1441(c). A

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federal court must remand a matter if there is a lack of jurisdiction. Id. Removal statutes are

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construed restrictively and in favor of remanding a case to state court. See Shamrock Oil & Gas

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Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

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1992).

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III.

Discussion

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A. Petitioning Defendant

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A petitioning defendant must file a removal petition within thirty days after being served

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with a complaint. 28 U.S.C. § 1446(b). The time for each defendant begins to run when they are

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personally served with the complaint. See Coleman v. Assurant, Inc., 463 F.Supp.2d 1164, 1166 (D.

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Nev. 2006). Here, BankUnited received notice of the complaint and filed a notice of removal prior

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to the time it was actually served with the complaint. Thus, BankUnited filed its notice of removal

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within the thirty day time limit.

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O’Connor argues that the time began to run when defendant National Default Servicing
Corporation (“NDSC”) was served, thereby making BankUnited’s removal untimely. See Doc. #10.
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However, the Ninth Circuit does not follow the “first-served” rule advocated by O’Connor which

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requires removal to occur within thirty days after the first defendant has been served. See United

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Steel v. Shell Oil Co., 549 F.3d 1204, 1208 (9th Cir. 2008); see also, Coleman, 463 F.Supp.2d at

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1166 (“More recently, circuit and district courts have begun to favor the later-served defendant rule

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which allows a later served defendant [to have] 30 days from the date of service to remove a case to

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federal district court.”). Accordingly, the court finds that BankUnited’s removal was timely.

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B. Amount in Controversy

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In her motion, O’Connor concedes that the parties are diverse for diversity jurisdiction

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purposes, but argues that BankUnited’s notice of removal is insufficient to prove, by a

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preponderance of the evidence, that the amount in controversy exceeds $75,000.00. See Doc. #10.

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The court has reviewed the document and pleadings in this matter and finds that the amount in

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controversy exceeds the $75,000 threshold. In her complaint, O’Connor is seeking to have the title

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to the underlying property quieted in her name and the outstanding loan obligations in excess of

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$200,000 extinguished. See Doc. #1, Exhibit 2. Therefore, the court finds that the amount in

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controversy has been met and that the exercise of diversity jurisdiction is appropriate.

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IT IS THEREFORE ORDERED that plaintiff’s motion to remand (Doc. #10) is DENIED.

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IT IS SO ORDERED.

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DATED this 21st day of May, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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