United States District Court, D. Hawaii
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR J.P. MORGAN MORTGAGE ACQUISITION TRUST 2006-WMC2, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-WMC2, Plaintiff,
DONNA MAE AMINA, ALSO KNOWN AS DONNA M. AMINA; MELVIN KEAKAKU AMINA ALSO KNOWN AS MELVIN K. AMINA; ASSOCIATION OF APARTMENT OWNERS OF 2304 METCALF STREET; and DOES 1 through 20, Inclusive, Defendants.
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S
MOTION TO REMAND
S.C. Chang United States Magistrate Judge.
the Court is Plaintiff U.S. Bank National Association, as
Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2,
Asset Backed Pass-Through Certificates, Series
2006-WMC2's (“Plaintiff”) Motion to Remand,
filed June 25, 2018. At the Court's direction, Plaintiff
filed a Supplemental Memorandum on July 5, 2018.
Court elects to decide this matter 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 Hawaii. After careful
consideration of the Motion, the Supplemental Memorandum, the
record, and the applicable law, the Court HEREBY RECOMMENDS
that Plaintiff's Motion be GRANTED for the reasons set
April 5, 2018, Plaintiff commenced this action in the Circuit
Court of the First Circuit, State of Hawaii. Plaintiff
asserts two causes of action: 1) declaratory relief and 2)
judicial foreclosure. Defendants Donna Mae Amina and Melvin
Keakaku Amina (collectively “the Aminas”) were
served with the Complaint on April 19, 2018. Mot., Ex. B.
14, 2018, the Aminas removed the action on the basis of
federal question and diversity jurisdiction. Notice of
Removal (“Notice”) at ¶¶ 6-7. Included
in the Notice are the following averments: 1) the Notice is
timely filed; 2) federal question jurisdiction exists because
the foreclosure of a mortgage is an “attempt to
collect” pursuant to the Fair Debt Collection Practices
Act (“FDCPA”); 3) diversity jurisdiction exists
because the amount in controversy exceeds $75, 000.00 and the
action is between citizens of different states. Id.
at ¶¶ 2, 6 & 7. The Aminas claim that they are
not citizens of Hawaii nor are they domiciled here because
the processes of Hawaii's statehood and membership in the
union were legally defective.
instant Motion followed.
seeks remand of this action to state court on the following
grounds: 1) removal is untimely; 2) federal question
jurisdiction is lacking; 3) diversity jurisdiction has not
been established; and 4) 28 U.S.C. §
1441(b)(2) bars removal.
Aminas removed the instant case on the basis of federal
question and diversity jurisdiction. Under 28 U.S.C. §
1441, a defendant may remove a civil action brought in a
state court to federal district court if the district court
has original jurisdiction. Abrego Abrego v. The Dow
Chemical Co., 443 F.3d 676, 679-80 (9th Cir. 2006).
“Removal . . . statutes are ‘strictly
construed,' and a ‘defendant seeking removal has
the burden to establish that removal is proper and any doubt
is resolved against removability.'” Hawaii ex
rel. Louie v. HSBC Bank Nevada, N.A., 761 F.3d
1027, 1034 (9th Cir. 2014) (quoting Luther v. Countrywide
Home Loans Serv. LP, 533 F.3d 1031, 1034 (9th
Cir.2008)); Durham v. Lockheed Martin Corp., 445
F.3d 1247, 1252 (9th Cir. 2006); California ex rel.
Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.
is a strong presumption against removal jurisdiction, which
“means that the defendant always has the burden of
establishing that removal is proper,' and that the court
resolves all ambiguity in favor of remand to state
court.” Hunter v. Philip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009) (quoting Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam));
California ex rel. Lockyer, 375 F.3d at 838
(“[T]he burden of establishing federal jurisdiction
falls to the party invoking the statute.”);
Durham, 445 F.3d at 1252 (Courts resolve any doubts
about the propriety of removal in favor of remanding the case
to state court). Courts should presume that a case lies
outside the limited jurisdiction of the federal courts.
Hunter, 582 F.3d at 1042.
The Aminas Untimely Removed on the Basis of Federal
timing of removal is governed by § 1446(b), which
(1) The notice of removal of a civil action or proceeding
shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief ...