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Citimortgage, Inc. v. Thomasson

United States District Court, D. Kansas

June 2, 2014

CITIMORTGAGE, INC., Plaintiff,
v.
JEFFREY A. THOMASSON, BRANDY L. THOMASSON, JANE DOE, JOHN DOE, BANK OF AMERICA NATIONAL ASSOCIATION, DELBERT THOMASSON, KATHALEEN THOMASSON, MAIN STREET CREDIT UNION, AND UNKNOWN HEIRS, EXECUTORS AND ADMINISTRATORS, DEVISEES, TRUSTEES, CREDITORS AND ASSIGNS, Defendants.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

On July 25, 2013, plaintiff filed suit in the District Court of Johnson County, Kansas against Jeffrey A. Thomasson, Brandy L. Thomasson, Jane Doe, John Doe, Bank of America National Association, Delbert Thomasson, Kathaleen Thomasson, Main Street Credit Union and unknown heirs, executors and administrators, devisees, trustees, creditors and assigns. The state court petition sought mortgage foreclosure of real property located in the State of Kansas. Doc. #1-2. On March 25, 2014, Jeffrey A. Thomasson and Brandy L. Thomasson removed the case to this Court, asserting federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. Notice Of Removal 28 U.S.C. § 1331 (Doc. #1). This matter comes before the Court on plaintiff's Motion To Remand To State Court (Doc. #9) filed April 23, 2014. Because the Court finds that the removal was untimely, plaintiff's motion to remand is sustained.

Factual And Procedural Background

On August 2, 2013, plaintiff served the state court petition on defendant Brandy Thomasson. On August 9, 2013, plaintiff served defendant Jeffery Thomasson by certified mail. On August 28, 2013, Brandy and Jeffrey Thomasson filed an Answer To Petition For Mortgage Foreclosure in the District Court of Johnson County, Kansas. On March 25, 2014, Brandy and Jeffrey Thomasson removed the case to this Court.

Legal Standards

A defendant may remove any state court civil action if a federal court has original jurisdiction over the claim. 28 U.S.C. § 1441(a). Federal courts strictly construe removal statutes and resolve all doubts in favor of remand. See SBKC Serv. Corp. v. 1111 Prospect Partners, L.P. , 105 F.3d 578, 580 (10th Cir. 1997). In addition to lack of subject matter jurisdiction, defects in removal procedure are grounds for remand. See 28 U.S.C. § 1447(c); Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 711-12 (1996); Henderson v. Holmes , 920 F.Supp. 1184, 1186 (D. Kan. 1996).

Under 28 U.S.C. § 1441(a), all defendants properly joined and served must join in or consent to the removal of the action within the 30-day period defined in Section 1446(b)(1).[1] See 28 U.S.C. § 1446(b)(2)(A); Henderson v. Holmes , 920 F.Supp. 1184, 1186-87 (D. Kan. 1996). Failure to comply with this requirement renders the notice of removal procedurally defective and subject to remand. See 28 U.S.C. § 1447(c); Huffman v. Saul Holdings Ltd. P'ship , 194 F.3d 1072, 1077 (10th Cir. 1999); Henderson , 920 F.Supp. at 1186. The party seeking removal carries the burden to show the propriety of removal and the existence of removal jurisdiction. Ortiz v. Biscanin , 190 F.Supp.2d 1237, 1241 (D. Kan. 2002); see Baby C v. Price , 138 F.Appx. 81, 83-84 (10th Cir. 2005).

Analysis

Plaintiff seeks remand, asserting that the removal was untimely under 28 U.S.C. § 1446(b)(1). On August 2 and August 9, 2013, plaintiff served the state court petition on Brandy Thomasson and Jeffrey Thomasson respectively. On August 28, 2013, the Thomassons filed an answer in the state court proceeding. The Thomassons did not file their notice of removal until March 25, 2014, well outside the thirty day period under Section 1446(b)(1). Plaintiff filed the motion to remand on April 23, 2014.

As of June 1, 2014, the Thomassons have not filed a response to the motion to remand. Under D. Kan. Rule 6.1(d)(2), the response to a motion to remand must be filed within 21 days. Pursuant to D. Kan. Rule 7.4, if a respondent fails to file a timely response to a motion, the Court will consider and decide the motion as an uncontested motion, and ordinarily, the Court will grant the motion without further notice.

Further, here, the Thomassons have not contested that plaintiff served the state court petition on Brandy Thomasson on August 2, 2013 and on Jeffrey Thomasson on August 9, 2013. The notice of removal - filed nearly seven months later on March 25, 2014 - was untimely.[2]

IT IS THEREFORE ORDERED that plaintiff's Motion To Remand To State Court (Doc. #9) filed April 23, 2014 be and hereby is SUSTAINED.

The Clerk of Court is directed to REMAND the case to the District Court of Johnson County, Kansas.


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