Webster v. Saxon Mortgage Services, Inc.
1:10-cv-12000
D. Mass.Dec 28, 2010Background
- Webster filed a state-court foreclosure-related complaint in Suffolk County, Massachusetts, naming Saxon, MERS, Taylor, and Orlans.
- The state court entered a temporary restraining order and later granted a preliminary injunction against foreclosure, finding the defendants did not establish they held the note.
- Defendants removed the case to federal court on November 18, 2010, after a November 18, 2010 ex parte state-court order.
- Taylor filed a bankruptcy filing on November 16, 2010, which stayed its participation in the case.
- Webster moved to remand arguing the removal was untimely under 28 U.S.C. § 1446(b); the court thus addressed the remand issue first.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was removal timely under 1446(b)? | Webster argues removal occurred after the 30-day window. | Defendants contend removal was timely, based on receipt date via service. | Removal untimely; remand granted. |
| Which defendant-practice governs timeliness (first-served vs last-served)? | Timeliness should be calculated from the first service date. | Timeliness may depend on later-served defendants; not clearly settled. | Court adopts first-served defendant approach for timeliness. |
Key Cases Cited
- Gorman v. Abbott Labs., 629 F. Supp. 1196 (D.R.I. 1986) (first-served defendant approach to removal timing)
- Abdullah v. American Products Co., 661 F. Supp. 2d 84 (D. Mass. 2009) (discusses approaches to removal timing)
- Garside v. Osco Drug, Inc., 702 F. Supp. 19 (D. Mass. 1988) (alternative last-served defendant approach)