United States District Court, N.D. Oklahoma
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR SOUNDVIEW HOME LOAN TRUST 2005-4, ASSET-BACKED CERTIFICATES, SERIES 2005-4, Plaintiff,
DOUGLAS W. MURPHY; JANE DOE; SPOUSE OF DOUGLAS W. MURPHY IF MARRIED; OCCUPANTS OF THE PREMISES; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Defendants.
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Deutsche Bank National Trust
Company's Motion to Remand Action to State Court
(“Motion to Remand”) (Doc. 21). For reasons
explained below, Plaintiff's Motion to Remand is GRANTED
in part and DENIED in part. The case is REMANDED to the
District Court for Tulsa County, Oklahoma.
case arises out of an alleged breach of payment obligations
under a promissory note. Plaintiff alleges that on or about
November 1, 2009, Defendant Douglas Murphy
(“Murphy”) stopped making payments on a note in
the sum of $117, 000. Plaintiff filed the First Amended
Petition (“FAP”) on May 10, 2016 in the District
Court for Tulsa County, Oklahoma. Murphy filed his Answer to
the FAP on August 18, 2016.
parties continued to litigate this case in state court for
almost one year. On August 16, 2017, Murphy, appearing
pro se, filed a Notice of Removal with this Court.
Plaintiff filed its Motion to Remand on September 12, 2017,
arguing that this matter should be remanded because it was
not removed within thirty days after receipt of the initial
pleading, as required under 28 U.S.C. § 1446(b)(1).
Plaintiff's Motion to Remand
Standard for Removal
defendant may remove any case that originally could have been
filed in federal court. See 28 U.S.C. § 1446(a)
(2017). The removing party must file a notice of removal
within thirty days of receiving the pleading or another
document from which the party can first ascertain that the
case is removable. See 28 U.S.C. § 1446(b)(1)
and (3) (2017). Failure to comply with these procedural
requirements warrants remand. Id. However, because
these requirements are procedural, rather than
jurisdictional, they can be waived, usually by the remanding
party's conduct. See Huffman v. Saul Holdings Ltd.
P'ship., 194 F.3d 1072, 1076-77 (citing Baris v.
Sulpicio Lines, Inc., 932 F.2d 1540, 1543-44 (5th Cir.
had notice of this action at least as early as August 18,
2016, when he filed his answer to the FAP. However, Murphy
did not file his Notice of Removal until August 16, 2017,
nearly one year later. Murphy concedes that his Notice of
Removal was untimely, but contends that this Court should
waive the thirty-day limitation in this case in the interest
may be appropriate where the remanding party has failed to
object to removal in a timely manner, pursuant to 28 U.S.C.
§ 1447(c), or has engaged in other conduct in federal
court “of a sort which would render it offensive to
fundamental principles of fairness to remand.” See
In re Mcgill, No. 16-cv-707, 2017 U.S. Dist. LEXIS 2100,
at *8 (quoting Barahona, No. CV 08-04634, 2008 WL
4724054, at *3 (internal citations omitted)); see also
Huffman, 194 F.3d at 1076-77; Brazell v. Waite,
525 Fed.Appx. 878, 884 (10th. Cir. 2013) (unpublished). In
evaluating the remanding party's conduct, the Court looks
to (1) the time spent in federal court; (2) the use of
federal processes; (3) petitions for and receipt of
affirmative relief; and (4) other actions which would make
remand inequitable under the circumstances. See In re
Mcgill, 2017 U.S. Dist. LEXIS 2100, at *8 (citing
Patel v. Smith, No. 11-6650, 2012 WL 3020353, at *3
(E.D. Pa. July 23, 2012)).
case, Murphy asks the Court to waive the requirements of 28
U.S.C. § 1447 out of fairness, but cites no grounds upon
which the Court can grant waiver. The Court finds no conduct
by Plaintiff that would constitute grounds to waive the
thirty-day removal period. Plaintiff's Motion to Remand
was timely filed within thirty days of the Notice of Removal,
as required under 28 U.S.C. § 1447(c). Further,
Plaintiff's participation in this proceeding prior to
filing its Motion to Remand was limited to administrative
filings and a procedural motion. This conduct does not rise
to the level that would render it offensive to fundamental
principles of fairness to remand. Accordingly, waiver is
inappropriate and this Court must grant Plaintiff's
Motion to Remand.
Motion to Remand (Doc. 21) is GRANTED in part and DENIED in
part. The case is REMANDED to the District Court for Tulsa
County, Oklahoma. In the Court's discretion,
Plaintiff's Motion to Remand is DENIED as to its request