Placencia v. World Savings Bank, FSB
3:10-cv-01130
| D. Or. | Feb 25, 2011Background
- Plaintiff Judy Placencia, proceeding pro se, filed suit in Clackamas County Circuit Court challenging a non-judicial foreclosure by World Savings Bank (now Wells Fargo).
- Defendant removed the action to federal court based on diversity jurisdiction.
- Plaintiff contends service and notice were proper, while defendant argues service was improper and removal timely.
- The court found plaintiff’s Express Mail service to Wells Fargo’s CFO was invalid under Oregon service rules, but valid service occurred at a defendant branch; removal timing hinges on when service was complete.
- Removal was filed September 20, 2010, within the 30-day period after proper service.
- Plaintiff argued lack of notice to adverse party under 28 U.S.C. § 1446(d); the court concluded defendant promptly sent notice and plaintiff suffered no prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of removal under § 1446(b) | Placencia argues removal was untimely due to defective service. | Removal timely since proper service occurred August 19, 2010 and the 30-day clock ran from then. | Removal timely; 30-day clock triggered by valid service on August 19, 2010. |
| Validity of service and notice | Express Mail service to Atkins constituted valid service and notice. | Express Mail to Atkins was invalid service; proper service required to the registered agent/address and notice to all adverse parties. | Express Mail to Atkins invalid; service on a branch was valid; notice to adverse parties was promptly provided. |
| Compliance with § 1446(d) notice requirement | Defendant did not provide notice to plaintiff of removal. | Notice of removal was promptly mailed; CM/ECF practices supported timely notice; plaintiff suffered no prejudice. | § 1446(d) notice satisfied; no basis to remand on notice defect. |
Key Cases Cited
- Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (U.S. 1999) (removal period begins after service of process; strict construction of removal timing)
- Prize Frize, Inc. v. Matrix (U.S.), Inc., 167 F.3d 1261 (9th Cir. 1999) (burden of establishing federal jurisdiction is on the removing party; strict construction of removal statute)
- Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir. 1980) (time limit for removal is not jurisdictional; formal and modal requirement)
- Alpena Power Co. v. Utility Workers Un. of Am., Local 286, 674 F. Supp. 1286 (E.D. Mich. 1987) (good faith notice and prejudice considerations in notice defects)