Opinion
No. 01-1394-WEB.
April 26, 2002
Memorandum and Order
This matter is before the court on plaintiff's Motion to Remand the action to state court. The court finds that oral argument would not assist in deciding the issues presented. For the reasons set forth herein, the court finds the motion to remand should be denied.
I. Background.
Plaintiff filed this action in the District Court of Montgomery County, Kansas, on October 26, 2001. The petition alleged that on May 5, 1999, plaintiff obtained a loan from defendant Mortgage Plus, Inc., which was secured by a mortgage on plaintiff's residence, and the underlying mortgage and promissory note were then assigned to defendant Chase Bank of Texas, which currently holds them. According to the petition, on or about August 21, 2001, plaintiff sent a letter to the defendants stating she was electing to rescind the transaction. Count I of the Petition alleges as follows:
"COUNT I
TRUTH IN LENDING VIOLATIONS
9. Plaintiff is entitled to rescind the subject loan transaction pursuant to 15 U.S.C. § 1635 due to the following:
(a) Mortgage Plus failed to provide to Plaintiff at the loan closing two copies of a Notice of Right to Cancel, as required by 12 C.F.R. § 226.15(b).
(b) Mortgage Plus failed to provide to Plaintiff at the loan closing the date that her three day right of rescission would expire, in contravention of 12 C.F.R. § 226.15(b).
(c) The Notice of Right to Cancel provided to Plaintiff contained a "Certificate of Confirmation" which violates 12 C.F.R. § 226.15(b).
10. Plaintiff's right of rescission is effective as to Chase pursuant to 15 U.S.C. § 1641. Chase has failed to substantively acknowledge Plaintiff's notice of rescission or take proper action to cancel the subject mortgage within 20 days of its receipt of said notice, as required by 15 U.S.C. § 1635(a)." Doc. 1, Exh. A.
The petition alleges in a separate claim that plaintiff is entitled to certain penalties because Mortgage Plus' conduct constituted a violation of the Kansas Consumer Credit Code. The prayer for relief seeks a judgment against Chase Bank pursuant to the Truth In Lending Act, and a judgment against Mortgage Plus pursuant to the Kansas Consumer Protection Act.
II. Removal Motion to Remand.
On November 19, 2001, Mortgage Plus filed a Notice of Removal of the action to this court. (Doc. 1). The Notice alleges that the action is removable under 28 U.S.C. § 1441(b) (c) because it arises under the Truth In Lending Act, 15 U.S.C. § 1601, et seq., and thus presents a federal question over which the court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. The notice said nothing about whether or not defendant Chase Bank consented to the removal. On January 17, 2002, almost sixty days after the notice of removal was filed, plaintiff filed a motion to remand in which she argued that the federal law claim was asserted only against defendant Chase Bank, not Mortgage Plus, and Mortgage Plus thus had no right to remove the action. Doc. 6. Mortgage Plus opposed the motion, arguing it had a right to removal because Count I arose under federal law. Doc. 9. On February 19, 2002, defendant Chase Bank obtained leave of court to file an out-of-time opposition to the motion to remand. Docs. 12, 13, 14.
III. Discussion.
Section 1441(a) provides in part that, except as otherwise provided, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants. . . ." Section 1441(b) provides in part that "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the . . . laws of the United States shall be removable without regard to the citizenship of the parties."
Under the "well-pleaded complaint" rule, an action arises under federal law "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Cf. Crow v. Wyoming Timber Prods. Co., 424 F.2d 93, 95 (10th Cir. 1970) ("Arising under" means the claimed federal right "must be an essential element of the plaintiff's cause of action."). In this case, plaintiff's petition clearly alleged a claim arising under the laws of the United States, and the court thus would have had original federal question jurisdiction of the matter when it was filed. § 1441(b). A procedural problem arose, however, because defendant Chase Bank did not timely express its consent to the notice of removal. The failure of all defendants to join in a removal petition renders the petition procedurally defective and subject to remand. Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981). See also Alcorn v. Union Pac. R. Co., 3 F. Supp.2d 1085, 1086 (W.D.Mo. 1998) (courts have interpreted "defendant or defendants" in § 1446 to require defendants to act collectively if there is more than one defendant).
Although the plaintiff is the "master of the claim" and may prevent removal by choosing not to plead a federal claim even if one is available, see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987), that was not done here. Count I of the petition arises under federal law because it "clearly and substantially involves a dispute or controversy respecting the validity, construction or effect of [a federal law] which is determinative of the resulting judgment." Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1381 (10th Cir. 1978).
Defendant Chase Bank has belatedly expressed its consent to the removal by filing a response arguing that plaintiff's motion to remand should be denied. Doc. 14.
Contrary to plaintiff's argument, however, this defect is not one of subject matter jurisdiction. The failure of all defendants to timely join in the removal notice "is a `defect in the removal procedure' within the meaning of 1447(c), but is not deemed to be jurisdictional." See Balazik v. County of Dauphin, 44 F.3d 209, 213 (3rd Cir. 1994); Johnson v. Helmerich Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990) ("the failure to join all the defendants in a removal petition is not a jurisdictional defect"); Fiene v. Standard Ins. Co., 2001 WL 1224144 (D.Kan., Oct. 9, 2001) ("A removal notice is procedurally defective if all defendants fail to consent to removal by joining in the notice").
A motion to remand a case on the basis of such a procedural defect must be filed within thirty days after the filing of the notice of removal. 28 U.S.C. § 1447(c). In this case, plaintiff's motion to remand was not filed within the thirty-day time limit in § 1447(c), and the court thus concludes that the motion to remand should be denied on that basis.
All of the parties in this case have to some degree failed to comply with the procedural requirements of the removal statute. Nevertheless, the court concludes that a denial of remand is in keeping with Congress' intent in drafting the time limit of § 1447(c), which was designed to prevent the shuffling of cases between state and federal courts after the first thirty days based on purely procedural defects when each court has subject matter jurisdiction. See Fed. Deposit Ins. Corp. v. Loyd, 955 F.2d 316, 322 (5th Cir. 1992).
IV. Conclusion.
Plaintiff's Motion to Remand (Doc. 6) is DENIED. IT IS SO ORDERED this Day of April, 2002, at Wichita, Ks.