United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
Yim You United States Magistrate Judge.
the court is plaintiff CIT Bank, N.A.'s (“CIT
Bank”) Motion for Remand (ECF #14), in which it also
requests costs and fees associated with the removal of this
case. Defendants Estate of Shari S. Marrazzo, Heirs,
Devisees, Assignees of Shari S. Marrazzo, and Andrea L. Ryun
join in the motion and request their own award of costs and
fees. ECF #22. For the reasons set forth below, the motion
should be GRANTED, but the court should decline to exercise
it discretion to award costs and fees.
2009, CIT Bank delivered an adjustable rate home equity
conversion line of credit (“the note”) to Shari
S. Marrazzo (“Marrazzo”) secured by her
residence. Notice of Removal, Ex. 1, at 5, 15, ECF #1-1.
Marrazzo made timely payments on the note until her death,
after which her estate defaulted leaving $231, 316.75 due as
of September 19, 2016. Id. at 7-8. Pursuant to the
terms of the note, CIT Bank exercised an acceleration clause
and declared the whole sum of principal and interest
immediately due and payable. Id. The estate did not
pay. Id. CIT Bank brought suit for judicial
foreclosure in Jefferson County Circuit Court on October 29,
2017,  and served defendants on November 11,
2017. Id. at 3. CIT Bank seeks the sale of the
Marrazzo residence to satisfy its debt, with remaining
proceeds to be paid to junior interests and Marrazzo's
estate. Id. at 10-11.
such junior interest holder, defendant Edward Hernandez
(“Hernandez”), filed a Notice of Removal (ECF #1)
on December 6, 2017, invoking this court's subject matter
jurisdiction through federal question jurisdiction. CIT Bank
filed the present Motion for Remand on January 10, 2018. ECF
#14. Hernandez responded on January 24, 2018, asserting new
bases for removal-74 days after CIT Bank served him with the
summons and complaint of the state-court action. ECF #19.
The notice of removal contains no valid basis for federal
court jurisdiction, and the new bases for
jurisdiction that Hernandez proffers are untimely.
Subject Matter Jurisdiction
courts are courts of limited jurisdiction. Corral v.
Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th
Cir. 2017) (quoting Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994)). Federal courts
“have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 USC § 1331 (federal question).
They also “have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between citizens of different States. . . .” 28 USC
§ 1332 (diversity of citizenship). Additionally, they
may exercise “supplemental jurisdiction over all other
claims that are so related to claims in the action within
such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.” 28 USC § 1367.
jurisdiction, because it involves a court's power to hear
a case, can never be forfeited or waived.” Rainero
v. Archon Corp., 844 F.3d 832, 841 (9th Cir. 2016)
(quoting United States v. Cotton, 535 U.S. 625, 630
Removal and Remand
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 the defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending.” 28 USC § 1441. However, “[i]f at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded” to state court. 28 USC § 1447(c).
is to be presumed that a cause lies outside [the federal
court's] limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Corral, 878 F.3d at 773
(quoting Kokkonen, 511 U.S. at 377). “This
burden is particularly stringent for removing defendants
because ‘[t]he removal statute is strictly construed,
and any doubt about the right of removal requires resolution
in favor of remand.'” Id. at 773-74
(quoting Moore-Thomas v. Alaska Airlines, Inc., 553
F.3d 1241, 1244 (9th Cir. 2009)); id. at 774 (citing
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992), “and noting the ‘strong presumption'
against removal jurisdiction”).
motion to remand challenging the existence of removal
jurisdiction is the “functional equivalent of a
defendant's motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1).” Leite v. Crane
Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing FRCP
12(b)(1)). Pursuant to FRCP 12(b)(1), dismissal is
appropriate when the court lacks subject matter jurisdiction
over a claim. “The burden of establishing federal
subject matter jurisdiction falls on the party invoking
removal.” Marin Gen. Hosp. v. Modesto & Empire
Traction Co., 581 F.3d 941, 944 (9th Cir. 2009)