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Green Tree Servicing LLC v. Trujillo

United States District Court, D. Oregon, Portland Division

October 2, 2018

GREEN TREE SERVICING LLC, Plaintiff,
v.
CARL JAMES TRUJILLO, Defendant.

          OPINION AND ORDER

          MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.

         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 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 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 ...


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