United States District Court, W.D. Washington
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK, AS TRUSTEE CWABS 2006-BC5, Plaintiff,
JOHN ROBERTS JR., et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO
RICHARD A. JONES, JUDGE
matter comes before the court on Plaintiff's motion to
remand. Dkt. # 8. For the reasons below, the Court
GRANTS the motion.
to federal court is governed by 28 U.S.C. § 1441 which
states that, “any civil action brought in a State court
of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or
defendants.” Original jurisdiction may be based on
diversity or the existence of a federal question, as set
forth in 28 U.S.C. §§ 1331 and 1332. District
courts have diversity jurisdiction over all civil actions
between citizens of different states where the amount in
controversy exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332.
1446(b) governs the timing of removal. “[A] notice of
removal may be filed within thirty days after receipt by the
defendant, through service or otherwise, a copy of an amended
pleading, motion, order or other paper from which it may be
first be ascertained that the case is one which is or has
become removable.” 28 U.S.C. § 1446(b)(3). A party
must remove a case within one year of its commencement,
“unless the district court finds that the plaintiff has
acted in bad faith in order to prevent a defendant from
removing the action.” 28 U.S.C. § 1446(c)(1).
“The one-year bar gives the defendant sufficient
incentive and time to determine the facts to justify removal
without imposing an undue burden to investigate removal
within the first thirty days of receiving an indeterminate
complaint.” Harris v. Bankers Life & Cas.
Co., 425 F.3d 689, 697 (9th Cir. 2005). The party
seeking a federal forum has the burden of establishing that
federal jurisdiction is proper. Abrego v. Dow Chem.
Co., 443 F.3d 676, 682-83 (9th Cir. 2006). The removing
party must carry this burden not only at the time of removal,
but also in opposition to a motion for remand. See
Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241,
1244 (9th Cir. 2009). Removal jurisdiction is strictly
construed in favor of remand, and any doubt as to the right
of removal must be resolved in favor of remand. Harris v.
Bankers Life & Cas. Co., 425 F.3d 689, 698 (9th Cir.
September 19, 2016, Plaintiff filed this action in Snohomish
County Superior Court (“State Court”) against
Defendant. Dkt. # 1-1. The complaint alleges the Defendant
failed to make monthly payments on a promissory note.
Defendant received service of the complaint on October 1,
2016. Dkt # 12 at 4. On January 10, 2019, the State Court
entered a judgment in plaintiff's favor for foreclosure.
Dkt #6 at 34-35. On May 2, 2019, Defendant removed this case
from State Court claiming diversity jurisdiction. Dkt. # 1.
Plaintiff argues that the thirty-day window for removal in
this case began on October 1, 2016, the date Defendant
received service of the complaint. Defendant contends,
however, that he was not properly served documents in the
State Court action and thus his Notice of Removal was
properly filed on May 5, 2019. He also argues that the Court
should deny the motion to remand because Plaintiff failed to
file a Disclosure Statement and Notice of Appearance. Dkt. #
10 at 3.
§ 1446(b)(3), the thirty-day time period starts to run
from the time Defendant receives “a copy of an amended
pleading, motion, order or other paper” from which it
can determine that the case is removable. See also Durham
v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir.
2006) (“[W]e don't charge defendants with notice of
removability until they've received a paper that gives
them enough information to remove.”). Here, the
complaint and summons were served on Defendant on September
19, 2016. Therefore, Defendant's notice of removal, filed
well after the 30-day window, is untimely. Although Defendant
claims improper service, he fails to present any facts in
support of that argument. Nor does he present any facts to
support a claim that Plaintiff acted in bad faith to prevent
removal. Any doubt as to the right of removal must be
resolved in favor of remand. Harris v. Bankers Life &
Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005).
the foregoing reasons, the court GRANTS
Plaintiff's motion to remand (Dkt. # 8) and directs the
clerk to remand this case to Snohomish County Superior
 Although the parties dispute whether
this Court has subject matter jurisdiction, the Court
declines to address the issue after finding removal untimely.
See Homax Prods., Inc. v. USA Homemax, Inc., No.
C11-534-RSM, 2011 WL 13229075 (W.D. Wash. Jul. 1, 2011)
(“A defendant's failure to comply with the
thirty-day limitation is a complete bar to removal