United States District Court, D. Hawaii
WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE OPTION ONE MORTGAGE LOAN TRUST 2007-2, ASSET-BACKED CERTIFICATES, SERIES 2007-2, Plaintiff,
DONNIE R. CORTEZ; ANNABELLE S. CORTEZ; DEPARTMENT OF TAXATION, STATE OF HAWAII; CREDIT ASSOCIATES OF MAUI, LTD.; JOHN DOES 1-20; JANE DOES 1-20; DOE CORPORATIONS 1- 20; DOE ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20, Defendants.
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S
MOTION FOR REMAND
S.C. Chang United States Magistrate Judge
the Court is Plaintiff Wells Fargo Bank, N.A.'s
(“Plaintiff”) Motion for Remand, filed July 25,
2016. Defendant Donnie Cortez (“Defendant”) did
not file a response. Plaintiff filed a Reply on October 7,
2016. The Court finds this matter suitable for disposition
without a hearing pursuant to Rule 7.2(d) of the Local Rules
of Practice for the U.S. District Court for the District of
November 15, 2011, Plaintiff filed an action in the Circuit
Court of the Second Circuit, State of Hawaii. It appears that
Defendant was served by certified mail in February of 2013.
entered in the state court action on April 8, 2015. On May 4,
2016, the state court confirmed the foreclosure sale and
entered a judgment and a writ of possession of the subject
27, 2016, Defendant filed a Notice of Removal
moves to remand this action to the Circuit Court of the
Second Circuit, State of Hawaii, on two grounds: 1) the state
court action does not involve a federal question and 2) the
Notice was untimely filed.
Removal was Improper
on what the Court is able to discern from the Notice,
Defendant removed the instant case on the basis of federal
question jurisdiction. Section 1441(a) provides, in pertinent
(a) Generally.--Except as otherwise expressly provided by Act
of Congress, 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 the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a). Section 1441 is strictly construed
against removal and courts resolve any doubts about the
propriety of removal in favor of remanding the case to state
court. See Durham v. Lockheed Martin Corp.,
445 F.3d 1247, 1252 (9th Cir. 2006). The party seeking to
remove the case bears the burden of establishing the
existence of federal jurisdiction. See California ex rel.
Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.
2004), cert. denied, 544 U.S. 974 (2005).
case ‘arises under' federal law only if the federal
question appears on the face of the plaintiff's
well-pleaded complaint.” Takeda v. Northwestern
Nat'l Life Ins. Co., 765 F.2d 815, 821 (9th Cir.
1985) (citations omitted). That is, “[t]he federal
question ‘must be disclosed upon the face of the
complaint, unaided by the answer or by the petition for
removal.'” Id. at 822 (citation omitted).
Here, the Complaint only contains a state law foreclosure
claim. Consequently, the Court finds that the Notice fails to
establish a proper basis for removal and this Court
recommends that the district court remand the case to the
Second Circuit Court, State of Hawaii. 28 U.S.C. §