Green Tree Servicing LLC v. Trujillo

Filing 11

OPINION AND ORDER: I find that this court lacks jurisdiction and GRANT Plaintiff's Motion to Remand to State Court 6 . It is ordered that the above-captioned matter be REMANDED to the Clackamas County Circuit Court. Pending motions, if any, are DENIED AS MOOT. Signed on 10/2/18 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

GREEN TREE SERVICING LLC,
No. 3:18-cv-01146-MO
Plaintiff,
OPINION AND ORDER
v.
CARL JAMES TRUJILLO,
Defendant.

MOSMAN, J.,
Defendant Carl James Trujillo removed this case from Clackamas County Circuit Court.
Plaintiff Green Tree Servicing comes before the Court seeking remand of this case back to the
Clackamas County Circuit Court. For the reasons set forth below, I GRANT Plaintiff’s Motion
for Remand to State Court [6].
BACKGROUND
Plaintiff originally filed a complaint for judicial foreclosure on real property located in
Oregon in Clackamas County Circuit Court in August 2015. The state court granted Plaintiff’s
Motion for Summary Judgment against Defendant in May 2017. Defendant filed a Notice of
Removal [1] from the Clackamas County Circuit Court on June 27, 2018.
LEGAL STANDARD
“Where doubt regarding the right to removal exists, a case should be remanded to state
court.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per
curiam). “The removal statute is strictly construed, and any doubt about the right of removal
1 – OPINION AND ORDER

requires resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241,
1244 (9th Cir. 2009). “The presumption against removal means that ‘the defendant always has
the burden of establishing that removal is proper.’” Id. (quoting Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992).
DISCUSSION
I.

Defendant’s Removal is Untimely
A defendant must file a notice of removal of a civil action within 30 days of defendant

receiving notice of the initial pleading. 28 U.S.C. § 1446(b)(1). The state court docket indicates
that Plaintiff served Defendant with the initial pleading on August 27, 2015. As that was more
than three years ago, Defendant’s removal to federal court is untimely.
II.

This Court Lacks Subject Matter Jurisdiction
A civil action may be removed to federal court if the district court to which it is removed

would have had original jurisdiction. 28 U.S.C. § 1441(a). Lack of subject matter jurisdiction
cannot be waived. Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17–18 (1951). “If at any time
before final judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c).
A. The Initial Pleading Lacks Federal Question Jurisdiction
28 U.S.C. § 1441 allows a defendant to remove an action to federal district court if the
court would have had original jurisdiction over the claim. Under 28 U.S.C. § 1331, federal
courts have original jurisdiction over “civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. A claim arises under federal law “only when a
federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Valles v.
Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005). Plaintiff’s complaint is a state law claim for

2 – OPINION AND ORDER

foreclosure. Mot. Remand [6] at 2. Defendant attempts to declare federal question jurisdiction
by claiming that he is a surety for the non-charitable irrevocable trust titled “CARL JAMES
TRUJILLO,” and that he is acting as an “intervenor/interpleader” in the foreclosure case.
Intervenor’s Notice of Removal to Fed. Jurisdiction (“Notice of Removal”) [1] at 1.
Defendant asserts federal jurisdiction under 28 U.S.C. § 1335. Defendant claims he is an
intervenor compelled to answer as a surety on behalf of Defendant and further attempts to
interplead all claims. Notice of Removal [1] at 3. Defendant has not provided any evidence that
he is functioning as a trust, an intervenor, nor made clear what would be interpleaded in this
case. As Defendant bears the burden of proving removal is appropriate, Defendant has failed to
demonstrate jurisdiction under section 1335.
Defendant next argues that this Court has jurisdiction under 28 U.S.C. § 1333(2) because
the foreclosure in question constitutes a proceeding “for the condemnation of property taken as a
prize.” Notice of Removal [1] at 2. But Defendant is mistaken about the jurisdiction conferred
by section 1333(2). The “prizes” referred to are maritime prize cases, as section 1333 deals with
federal jurisdiction over admiralty law. Therefore, Defendant has failed to demonstrate
jurisdiction under section 1333.
B. Removal Based on Diversity Jurisdiction is Improper
District courts have original jurisdiction over all civil actions where the amount in
controversy exceeds $75,000 and the parties are citizens of different states. 28 U.S.C. §
1332(a)(1). A civil action removed solely on diversity jurisdiction under 28 U.S.C. § 1332(a)
may not be removed if the defendant is a citizen of the state in which the action was brought. 28
U.S.C. § 1441(b)(2).

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Defendant argues that Plaintiff is an unregistered foreign agent, that Defendant is a vessel
of the United States insured by the State of Wyoming, and that Defendant is a citizen of Wyomin
for diversity purposes. Notice of Removal [1] at 2. Defendant provides no supporting evidence
of these claims, failing to meet his burden. Further, Defendant’s Notice of Removal and all
documents associated with this case list Defendant’s address as an Oregon address. Because a
defendant who is a citizen of the state in which the action is brought cannot remove to federal
district court, removal under diversity jurisdiction is not appropriate in this case.
CONCLUSION
For the aforementioned reasons, I find that this court lacks jurisdiction and GRANT
Plaintiff’s Motion to Remand to State Court [6]. It is ordered that the above-captioned matter be
REMANDED to the Clackamas County Circuit Court. Pending motions, if any, are DENIED
AS MOOT.

IT IS SO ORDERED.
2nd
DATED this _____ day of October, 2018.

/s/ Michael W. Mosman
_________________________
MICHAEL W. MOSMAN
Chief United States District Judge

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