United States District Court, D. Hawaii
AURALEE J. PALMEIRA AND ADELE PALMEIRA-SHINN, Plaintiffs,
CIT BANK, N.A., f/k/a ONEWEST BANK, FSB; FEDERAL HOME LOAN MORTGAGE CORPORATION; KALEI B. COLRIDGE; and DOE DEFENDANTS 1-50, Defendants.
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFFS'
MOTION FOR AN ORDER OF REMAND 
Richard L. Puglisi United States Magistrate Judge.
the Court is Plaintiffs' Motion for an Order of Remand,
filed on July 7, 2017 (“Motion”). ECF No. 21.
Defendant Kalei B. Colridge filed her Opposition on July 21,
2017. ECF No. 23. Defendants CIT Bank, N.A., f/k/a Onewest
Bank N.A., f/k/a Onewest Bank, FSB and Federal Home Loan
Mortgage Corporation (collectively the “Mortgagee
Defendants”) filed a Joinder in Defendant
Colridge's Opposition on July 21, 2017. ECF No. 24.
filed their Reply on August 4, 2017. ECF No. 25. The Court
found this matter suitable for disposition without a hearing
pursuant to Rule 7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawaii. ECF
No. 22. After carefully reviewing the submissions of the
parties and the relevant legal authority, the Court FINDS
that this case was not properly removed. Accordingly, the
Court RECOMMENDS that the district court GRANT
initially filed this action on June 30, 2016, in the Circuit
Court of the Fifth Circuit, State of Hawaii. See ECF
No. 1 ¶1. The Mortgagee Defendants were served with
Plaintiffs' First Amended Complaint on September 27,
2016. ECF No. 7 at 3. The Mortgagee Defendants filed their
Answer on October 17, 2016. Id. Defendant Colridge
was served with the First Amended Complaint on May 23, 2017.
ECF No. 1 ¶ 15.
Colridge filed her Notice of Removal based on diversity
jurisdiction on June 9, 2017, seventeen days after she was
served. Id. ¶ 13. In the Notice of Removal,
Defendant Colridge states that the Mortgagee Defendants were
served and answered the First Amended Complaint in 2016.
Id. ¶¶ 3, 16. The Notice of Removal,
signed only by Defendant Colridge's counsel, does
not state that the Mortgagee Defendants consent to
removal or join in the removal. Id. On June 26,
2017, thirty-four days after Defendant Colridge was served,
the Mortgagee Defendants filed a Consent to and Joinder in
Defendant Kalei B. Colridge's Notice of Removal
(“Consent”). See ECF No. 7. In that
Consent, the Mortgagee Defendants state that counsel for
Defendant Colridge sought and obtained the Mortgagee
Defendants' counsel's verbal consent by telephone to
remove this case on June 7, 2017. Id. at 3; ECF No.
7-1 ¶ 4. On June 27, 2017, Defendant Colridge filed a
“Supplement” to her Notice of Removal stating
that removal was timely because the Mortgagee Defendants gave
verbal consent to removal to counsel for Defendant Colridge
and the Mortgagee Defendants' Consent was filed within
thirty days of the Notice of Removal. See ECF No.
11. The present Motion followed.
civil action filed in state court over which the federal
courts have original jurisdiction may be removed to federal
court by the defendants. See 28 U.S.C. §
1441(a). As noted above, Defendant Colridge's Notice of
Removal states that this court has original jurisdiction
based on diversity. See ECF No. 1. “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., 552 F.3d 1241, 1244 (9th Cir. 2009); Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)
(“Federal jurisdiction must be rejected if there is any
doubt as to the right of removal in the first
instance.”). The defendant who invokes the federal
court's removal jurisdiction has the burden of
establishing that removal was proper. Washington v.
Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011).
1446 provides that the notice of removal shall be filed
within 30 days after receipt by the defendant of the initial
pleading or, if the case is not initially removable, within
30 days after receipt by the defendant of a copy of a paper
from which it may first be ascertained that the case is
removable. See 28 U.S.C. § 1446(b)(1)-(3). The
Ninth Circuit has held that Section 1446's “time
limit is mandatory and a timely objection to a late petition
will defeat removal.” Fristoe v. Reynolds Metals
Co., 615 F.2d 1209, 1212 (9th Cir. 1980); Smith v.
Mylan Inc., 761 F.3d 1042, 1045 (9th Cir. 2014);
Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136,
1142 n.4 (9th Cir. 2013).
under the “rule of unanimity, ” all defendants
who have been properly joined and served must join in or
consent to the removal of the action. Id. §
1446(b)(2)(A). If a later-served defendant files a notice of
removal, the earlier-served defendants may consent to the
removal even though they did not seek or consent to removal.
Id. § 1446(b)(2)(C). The Ninth Circuit has held
that “where fewer than all the defendants have joined
in a removal action, the removing party has the burden under
section 1446(a) to explain affirmatively the absence of any
co-defendants in the notice for removal.”
Prize Frize, Inc. v. Matrix (U.S.) Inc.,
167 F.3d 1261, 1266 (9th Cir. 1999) (emphasis added)
(superseded by statute on other grounds as recognized by
Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676,
681 (9th Cir. 2006) (noting that the judicially-created rule
of unanimity applied by the Ninth Circuit no longer applied
to the removal of class actions pursuant to 28 U.S.C. §
Defendant Colridge's Notice of Removal Was Procedurally
Defective Because it Failed to Explain the Absence of the
Mortgagee Defendants' Consent or Joinder.
Defendant Colridge's Notice of Removal was filed within
30 days after she was served with the First Amended
Complaint, there is no dispute that Defendant Colridge's
Notice of Removal does not state that the Mortgagee
Defendants consent to or join in the removal. See
ECF No. 1. As noted above, “all defendants who have
been properly joined and served must join in or consent to
the removal of the action.” 28 U.S.C. § 1446(b)(2)
(A); Proctor v. Vishay Intertechnology Inc., 584
F.3d 1208, 1224 (9th Cir. 2009) (“In a case involving
multiple defendants, all defendants must join in a removal
petition.” (citation omitted)). Additionally, in the
Ninth Circuit, the removing defendant “has the burden
to explain affirmatively the absence of any co-defendants in
the notice for removal.” Prize Frize, Inc.,
167 F.3d at 1266. Defendant Colridge's Notice of Removal
is silent as to the Mortgagee Defendants' absence.
See ECF No. 1. The fact that the Mortgagee
Defendants provided verbal consent to removal to Defendant
Colridge's counsel is of no effect because that consent
was not reflected in the Notice of Removal. Although the
Ninth Circuit has held that the removing defendant's
written averment in the notice that all defendants consent to
removal is sufficient, see Proctor, 584 F.3d at
1225, there is no authority for Defendant Colridge's
argument that verbal consent that is not reflected in the
written notice is sufficient. Because Defendant Colridge
failed to affirmatively explain the absence of the
co-defendants in the Notice of Removal, the Notice of Removal
was procedurally defective.
Colridge also appears to argue that the Ninth Circuit's
requirement that the removing defendant has the burden to
affirmatively explain the co-defendant's absence in the
notice of removal articulated in Prize Frize, Inc.
is no longer applicable because that case was decided before
the rule of unanimity was codified by Section 1446(b)(2)(A)
in 2011. See ECF No. 23 at 12. The Court rejects
this argument. Since 2011, district courts in this circuit
have routinely held that a notice of removal that fails to
affirmatively explain the absence of the co-defendants is
deficient and subject to remand. See, e.g.,
Chandler v. Whiting Oil and Gas Co., No.
CV16161BLGSPWTJC, 2017 WL 3131108, at *3-*5 (D. Mont. June
19, 2017), report and recommendation adopted, No. CV
16-161-BLG-SPW, 2017 WL 3172752 (D. Mont. July 24, 2017)
(holding that a defendant's notice of removal was
defective because it failed to affirmatively explain a
co-defendant's absence in the notice for removal);
Pioneer Asset Inv. Ltd. v. Arlie & Co., No. CV
15-00387 ACK-KSC, 2015 WL 9665667, at *2 (D. Haw. Dec. 14,
2015), report and recommendation adopted, No. CV
15-00387-ACK-KSC, 2016 WL 70445 (D. Haw. Jan. 5, 2016)
(rejecting the removing defendant's argument that its
representation about the co-defendant's anticipated
consent was sufficient); Allen v. Wells Fargo Bank
NA, No. CV-14-08176-PCT-DLR, 2014 WL 11497805, at *2 (D.
Ariz. Nov. 14, 2014) (“Wells Fargo failed to
affirmatively allege and explain the absence of its
co-defendant in the removal notice, which itself constitutes
a procedural defect that subjects the action to
remand.”); Idaho v. Friends of Weiser River Trail,
Inc., No. 1:12-CV-00456-EJL, 2013 WL 2338240, at *2 (D.
Idaho May 28, 2013) (holding that because the removing
defendant failed to provide an explanation of the
co-defendants' absence in the notice of removal, the
notice was procedurally defective). The Court finds that
Defendant Colridge's Notice of Removal was procedurally
deficient because it did not contain an affirmative
explanation of the Mortgagee Defendant's absence.
Neither the Mortgagee Defendants' Consent, filed on June
26, 2017, nor Defendant Colridge's Supplement, filed
onJune 27, ...