United States District Court, D. Hawaii
U.S. BANK NATIONAL ASSOCIATION, SUCCESSOR TRUSTEE TO WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE BANC OF AMERICA FUNDING CORPORATION 2005-E TRUST, Plaintiff,
DANNY CASTRO MAGGAY, ET AL., Defendants.
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S
MOTION TO REMAND
RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGE
AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION TO
the Court is Plaintiff's Motion to Remand, filed on
September 21, 2017 ("Motion"). ECF No. 10.
Defendants did not file an opposition or other response to
the Motion. 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. 11. After carefully
reviewing the submissions of the parties, the relevant legal
authority, and the lack of opposition, the Court FINDS and
RECOMMENDS that the district court GRANT Plaintiff's
Motion to Remand.
foreclosure action was originally filed in the Circuit Court
of the First Circuit, State of Hawaii on October 31, 2012.
ECF No. 6-4. Defendants filed their Notice of Removal on
August 14, 2017, on the basis of federal question.
See ECF No. 1. In the present Motion, Plaintiff
seeks remand arguing that the court lacks jurisdiction
because there is no federal question jurisdiction and based
on the forum defendant. ECF No. 10.
defendant who invokes the federal court's removal
jurisdiction has the burden of establishing federal
jurisdiction. Washington v. Chimei Innolux Corp.,
659 F.3d 842, 847 (9th Cir. 2011). Courts construe the
removal statute strictly against removal. Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations
omitted). If there is any doubt as to the right of removal in
the first instance, remand must be granted. See Id.
at 566. Here, Defendants fail to meet their burden to
establish federal jurisdiction.
the Motion was timely. Although the Motion was filed more
than thirty days after Defendants filed their Notice of
Removal, Section 1447(c) allows a motion to remand based on
lack of subject matter jurisdiction to be filed at any time
prior to final judgment. 28 U.S.C. § 1447(c); see
also 0'Conner v. Hilton Hawaiian Vill., 763 F.Supp.
1544, 1546 (D. Haw. 1990).
removal was improper on the basis of federal question
jurisdiction. "[F]ederal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint." Rivet
v. Regions Bank of La., 522 U.S. 470, 475 (1998)
(citations and internal quotation marks omitted). Here, the
Complaint contains only a state law claim for foreclosure.
See ECF No. 6-4. Defendants' Notice of Removal
states that "a federal question" exists under the
National Bank Act and under "Title 1369." ECF No. 1
at 2-3. To the extent Defendants intend to raise a federal
defense, defenses are not part of the plaintiff's
well-pleaded complaint, and a defendant cannot remove an
action on the basis of federal question jurisdiction based on
federal defenses. See Rivet, 522 U.S. at 475.
removal was improper on the basis of diversity jurisdiction.
Section 1441(b)(2) provides:
A civil action otherwise removable solely on the basis of
[diversity jurisdiction] may not be removed if any of the
parties in interest properly joined and served as defendants
is a citizen of the State in which such action is brought.
28 U.S.C. § 1441(b)(2). Defendants are citizens of
Hawaii. See ECF No. 1 (listing Hawaii address) .
Actions based on diversity jurisdiction may only be removed
if none of the properly joined and served defendants is a
citizen of the state in which the action is brought. 28
U.S.C. § 1441(b)(2). Because Defendants are citizens of
Hawaii, Section 1441(b)(2) precludes removal of this action
on the basis of diversity jurisdiction.
Court finds that Defendants improperly removed this action
and recommends that the district court GRANT Plaintiff's
Motion to Remand this ...