Bank of New York Mellon v. Tombarelli

• Court: District Court, E.D. Washington
• Decided: August 8, 2022
• Docket: 2:22-cv-00140
• Status: Unknown

Opinion

1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Aug 08, 2022 2

SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 THE BANK OF NEW YORK No. 2:22-cv-00140-SMJ 5 MELLON, F/K/A THE BANK OF NEW YORK, AS SUCCESSOR- ORDER GRANTING MOTION 6 IN-INTEREST TO JPMORGAN FOR REMAND CHASE BANK, N.A., AS TRUSTEE 7 FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II 8 INC., BEAR STEARNS ALT-A TRUST, MORTGAGE PASS- 9 THROUGH CERTIFICATES, SERIES 2005-10, 10 Plaintiff, 11 v. 12 SUSAN M. TOMBARELLI, et. al., 13 Defendants. 14 Before the Court is Plaintiff Bank of New York Mellon’s Motion for 15 Remand, ECF No. 2. Plaintiff lodges several arguments as to why this matter should 16 be remanded to state court. Having reviewed the record and pleadings in this matter, 17 this Court is fully informed. Because the Court finds that Defendant untimely 18 removed this case, the Court grants the motion without reaching Plaintiff’s other 19 arguments. 20 1 BACKGROUND 2 In February of 2016, Plaintiff the Bank of New York Mellon filed a complaint

3 in Washington state court against Defendant Tombarelli for declaratory relief and 4 judicial foreclosure of a property located in Liberty Lake, Washington. See ECF 5 No. 6 at 4. On February 7, 2016, a process server in the state of Washington served

6 the summons and complaint at Defendant’s residence. ECF No. 6 at 2. Then, on 7 June 10, 2022, Defendant removed the case to the United States District Court for 8 the Eastern District of Washington. ECF No 1. Plaintiff immediately moved the 9 remand this matter, arguing, among other things, that removal was untimely. ECF

10 No. 2 at 1. Defendant, who is proceeding pro se, opposes the motion.1 ECF No. 7. 11 DISCUSSION 12 A. Defendant untimely removed this matter to Federal Court

13 A defendant may remove an action from state court to federal court where 14 “the district courts of the United States have original jurisdiction.” 28 U.S.C. § 15 1441(a). “The notice of removal of a civil action or proceeding shall be filed withing 16 30 days after the receipt by the defendant, through service or otherwise, of a copy

17 of the initial pleading.” 28 U.S.C. § 1446(b)(1). The time for removal under 28 18

19 1 In her response to Plaintiff’s motion, Defendant asks the Court to take judicial notice of several cases that generally direct courts to liberally construe pleadings 20 submitted by persons proceeding pro se, such as Defendant. Even liberally construing Defendant’s pleadings, the Court finds that removal is untimely. 1 U.S.C. § 1446 “is imperative and mandatory, must be strictly complied with, and is 2 to be narrowly construed.” United States ex rel. Walker v. Gunn, 511 F.2d 1024,

3 1026 (9th Cir. 1975); see also O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 4 (9th Cir. 1988) (“[S]ection 1441 is strictly construed against removal.”). The period 5 for removal begins to run “after the receipt by the defendant, through service or

6 otherwise, of a copy of the initial pleading.” 28 U.S.C. § 1446(b)(1) (emphasis 7 added). It matters not whether service was proper under the language of the statute. 8 See Pic-Mount Corp. v. Stoffel Seals Corp., 708 F.3d Supp. 1113, 1118 (D. Nev. 9 1989) (“receipt of an initial pleading begins the thirty-day removal period,

10 irrespective of the technicalities of state service of process laws”). 11 Here, removal was plainly untimely. Defendant was served with the 12 summons and complaint on February 7, 2016, commencing the thirty-day removal

13 period. Thus, Defendant had until March 7, 2016 to timely remove this matter. 14 Defendant did not file a notice of removal until June of 2022, more than five years 15 after the deadline elapsed. To the extent Defendant asks this Court to excuse the 16 untimely removal under Federal Rule of Civil Procedure 60(b), see ECF No. 7 at 6,

17 that request is denied as Defendant has not stated any “exceptional circumstances” 18 that would entitle her to such relief. Gurrola v. Howard, 2022 WL 1617991, at *2 19 (C.D. Cal. May 21, 2022) (declining to excuse untimely removal where the

20 defendants failed to demonstrate exceptional circumstances justifying relief). 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff Bank of New York Mellon’s Motion for Remand, ECF No. 3 2,is GRANTED. 4 2. This action is REMANDED to Spokane County Superior Court.

5 3. All pending motions are DENIED AS MOOT. 6 4. All hearings and other deadlines are STRICKEN.

7 5. The Clerk’s Office is directed to CLOSE this file. 8 IT ISSO ORDERED. The Clerk’s Office is directed to enter this Order and 9 || provide copies to all counsel. 10 DATED this 8" day of August 2022. 11 yb het 12 SALVADOR MENDOZAUIR United States District Judge 13 14 15 16 17 18 19 20