Opinion
Civil Action No. 03-3369 Section: I.
August 17, 2004
ORDER AND REASONS
Defendants, Herschel C. Adcock, Jr., G.E. Capital Home Mortgage Services, Inc., Wells Fargo Home Mortgage, Inc., and Joshua Rendeno, removed the above captioned case alleging federal question jurisdiction pursuant to 28 U.S.C. § 1331. Pro se plaintiff Barbara Ann Jackson challenges defendants' removal of her state court action to United States District Court. Plaintiff requests that this Court remand the case to the state court from which it was removed for lack of subject matter jurisdiction. Plaintiff also asserts that defendants' notice of removal was untimely. Upon review of the record, the motions, memoranda of counsel and plaintiff, and the law, IT IS ORDERED that the motion of plaintiff, Barbara Ann Jackson, to remand is DENIED.
Rec. Doc. 1.
Rec. Doc. 67.
Rec. Doc. 67. Additionally, plaintiff argues that this Court does not have subject matter jurisdiction with regard to defendant Joshua Rondeno. However, Mr. Rondeno was dismissed with prejudice on April 5, 2004, pursuant to plaintiff's motion. Rec. Doc. 12. Therefore, any jurisdictional issue with regard to Mr. Rondeno is moot.
Plaintiff also argues that her state law claims are not completely preempted. However, defendants do not assert complete preemption as a basis for this Court's removal jurisdiction. Instead, defendants allege original, or federal question, jurisdiction.
Rec. Doc. 67.
Defendants filed their notice of removal on November 28, 2003. Plaintiff filed her motion for remand on July 26, 2004, nearly eight months after this matter was removed to federal court.
Rec. Doc. 1.
Rec. Doc. 67.
The procedure for remanding a case removed from state court is governed by 28 U.S.C. § 1447(c), which reads in relevant part:
A motion to remand the case on the basis of any defect in the removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.
Section 1447(c) establishes that a plaintiff has thirty days to seek remand based on a defect in the removal procedure. There is no time limit to seek remand based on subject matter jurisdiction. Plaintiff frames her motion as one based on this Court's lack of subject matter jurisdiction, but the substance of her motion is based on a defect in the removal procedure.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The original jurisdiction alleged by defendants is "federal question" jurisdiction — i.e., that the case is one "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Accordingly, "[i]t is well settled that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law." Heimann v. National Elevator Indus. Pension Fund, 187 F.3d 493, 499 (5th Cir. 1999). See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987) (stating that subject matter jurisdiction exists "when a federal question is presented on the face of the plaintiff's properly pleaded complaint").
Plaintiff's amended petition for damages contains claims alleging violations of two federal statutes, the Truth in Lending Act (TILA), 15 U.S.C. § 1602, and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692A. Plaintiff also asserts numerous state law claims. While plaintiff's state law claims may predominate, federal question jurisdiction, even when established by the presence of one federal claim, is not precluded by a host of state law claims. This Court has subject matter jurisdiction based on plaintiff's federal claims pursuant to 28 U.S.C. § 1331 and supplemental subject matter jurisdiction of her state law claims pursuant to 28 U.S.C. § 1367.
Attachment to Rec. Doc. 1.
Plaintiff's amended petition contains 119 paragraphs of allegations against defendants. Attachment to Rec. Doc. 1.
Paragraph 15 of plaintiff's expedited motion to remand establishes this Court's federal question jurisdiction, stating, "Plaintiff's TILA and FDCPA claims arose from acts and omissions by the defendants which form the basis of plaintiff's state law claims." Rec. Doc. 67.
28 U.S.C. § 1367(a) provides supplemental jurisdiction for the state law claims. "[I]n any civil action of which the district courts have original jurisdiction, the district court shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." § 1367(a). All of plaintiff's claims relate to defendants' attempts to foreclose on plaintiff's residence.
Defendants jointly filed their removal notice on November 28, 2003. Wells Fargo was served on October 30, 2003, and GE was served on October 31, 2003. GE Capital and Wells Fargo filed notice within thirty days of being served with the amended petition which contained federal causes of action. However, Mr. Rondeno was served on October 27, 2003, thirty-two days before defendants' removal notice was filed. 28 U.S.C. § 1446(b) states:
Rec. Doc. 1, ¶ 7. In order to be timely filed, defendants' notice should have been filed by November 26, 2003.
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
Therefore, defendants' removal from state court was procedurally defective because it was effected more than thirty days after service upon the first-served defendant, Mr. Rondeno. See 28 U.S.C. § 1446(b); Getty Oil Corporation v. Insurance Company of North America, 841 F.2d 1254, 1262-63 (5th Cir. 1988). Plaintiff then had thirty days from defendants' late-filing of the notice of removal to file a motion to remand the case based on the defect. See 28 U.S.C. § 1447(c); Albarado v. Southern Pacific Transp. Co., 199 F.3d 762, 764 (5th Cir. 1999).
"So long as the defect in removal procedure does not involve a lack of federal subject matter jurisdiction, there is no reason why either State or Federal courts, or the parties, should be subject to the burdens of shuttling a case between the two courts that each have subject matter jurisdiction. There is also some risk that a party who is aware of a defect in removal procedure may hold the defect in reserve as a means of forum shopping if the litigation should take an unfavorable turn. [Section 1447(c)] provides a period of 30 days within which remand must be sought on any ground other than lack of subject matter jurisdiction." Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1212 (3d Cir. 1991) (quoting the Report of the House Judiciary Committee, H.R. REP. No. 889, reprinted in 1988 U.S.C.C.A.N. 5982, 6033).
The statutory time limit for removal petitions is merely a formal and modal requirement, and it is not jurisdictional. See Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir. 1992) (stating "sections 1446(b) and 1447(c) are procedural provisions"); 16 MOORE's FEDERAL PRACTICE 3d § 107.41[1][c][ii] (Matthew Bender 3d ed). Although the removal time limit is mandatory and timely objection to a late petition will defeat removal, a party may waive the defect or be estopped from objecting to defendants' untimeliness by sitting on its rights. 28 U.S.C. §§ 1446(b), 1447(c); see also Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1212 (9th Cir. 1980).
Nearly eight months elapsed since this case was removed to federal court. Unfortunately for plaintiff, 28 U.S.C. § 1447(c) precludes her challenge to defendants' removal of this case. No authority exists for remand at this time because the Court has subject matter jurisdiction.