United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CHRIS BLUM,

Plaintiff,

v

INDYMAC MORTGAGE SERVICES, et al,

Defendants. /

No C 09-2286 VRW

ORDER

Plaintiff Chris Blum moves for an order remanding the

above-captioned matter to state court. Doc #15. For the following

reasons, plaintiff’s motion is GRANTED.

I

On April 30, 2009, plaintiff filed a complaint in state

court alleging fraudulent and predatory loan practices. Plaintiff

provides evidence that, as early as May 5, defendants Indymac,

Washington Mutual Bank and NDEx West, LLC had been served. Doc

#16-3. At a hearing in state court on May 12, defendants Indymac

and NDEx West, LLC appeared (the latter by telephone). Id. 

//

Case 3:09-cv-02286-VRW Document 65 Filed 02/03/10 Page 1 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

On May 22, OneWest Bank removed the proceeding to this

court. Doc #1. In its notice of removal, OneWest Bank indicated

that it represents only itself and no other parties. Id. 

Plaintiff argues that OneWest Bank’s notice of removal

was procedurally defective because OneWest Bank failed to obtain

joinder or consent of all defendants who had been served at the

time of removal and because OneWest Bank failed to provide this

court with a copy of all pleadings that had been served upon it. 

Doc #15 at 3. Plaintiff’s motion is unopposed.

II

A defendant seeking to remove an action must do within

thirty days of having received the complaint. 28 USC § 1446(b).

Where, as here, there are multiple defendants, the rule of

unanimity requires that all defendants must join in removal. 

Barbera v WMC Mortgage Corp, 2009 US Dist LEXIS 25785 (ND Cal)

(citing United Computer Sys, Inc v AT&T Corp, 298 F3d 756, 762 (9th

Cir 2002); Hewitt v City of Stanton, 798 F2d 1230, 1232-33 (9th Cir

1986); Schwarzer, Tashima, Wagstaffe, Federal Civil Procedure

Before Trial, § 2.611 at 2D1.2 (TRG 2008)). Failure to obtain

joinder or consent from all proper defendants renders a notice of

removal procedurally defective. Beltran v Monterey County, 2009 US

Dist LEXIS 21644 (ND Cal). 

In the Ninth Circuit, a removing party need not seek

joinder of “nominal, unknown or fraudulently joined parties” in

removing an action. Id (citing United Computer Sys, Inc, 298 F3d

at 762). While this narrow exception includes a defendant that has

not been served at the time of removal, “[a] removing defendant

Case 3:09-cv-02286-VRW Document 65 Filed 02/03/10 Page 2 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

must exercise due diligence to ascertain if other defendants have

been served, and simply checking if a proof of service has been

filed with the court is insufficient.” Orozco v EquiFirst Corp,

2008 WL 5412364, at *1 (CD Cal 2008); Beltran, 2009 US Dist LEXIS

21644.

III

It is clear on the face of OneWest Bank’s notice of

removal that all defendants did not join in removal. Doc #1. 

Despite OneWest Bank’s representation that “[i]t is unclear [at the

time of removal] as to whether or not any of the remaining parties

have been served with the Complaint and summons,” Doc #16-8, at

least two defendants had already appeared in the matter, see Doc

#16-6, and three had been served. Doc #16-3 at 13-28. Given these

facts – and the lack of opposition to plaintiff’s motion – the

court must conclude that OneWest Bank did not perform the requisite

due diligence to ascertain if other defendants have been served.

Because the court finds that OneWest Bank’s notice of

removal was procedurally defective in that it was not joined by all

defendants, the court need not consider plaintiff’s argument that

the notice was also defective for failure to file copies of all

pleading which had been served upon it. Doc #15 at 6.

//

//

//

//

//

Case 3:09-cv-02286-VRW Document 65 Filed 02/03/10 Page 3 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

IV

 For the above reasons, plaintiff’s motion to remand (Doc

#15) is GRANTED. The hearing scheduled for February 4, 2010 is

HEREBY VACATED. The clerk is directed to transfer the file to the

Superior Court of California for the County of Sonoma.

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

Case 3:09-cv-02286-VRW Document 65 Filed 02/03/10 Page 4 of 4