United States District Court, W.D. Louisiana, Lafayette Division
JUNEAU MAGISTRATE JUDGE HANNA
REPORT AND RECOMMENDATION
PATRICKS HANNA, UNITED STATES MAGISTRATE JUDGE
the Court is the Motion to Remand filed on behalf of
Plaintiff, Flagstar Bank FSB. (Rec. Doc. 5). Defendant, Edna
Cormier, has not opposed. The deadline for filing oppositions
to the Motion to Remand was September 9, 2019. The Motion was
referred to the undersigned magistrate judge for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. §636 and the standing orders of this Court.
Considering the evidence, the law, and the arguments of the
parties, and for the reasons fully explained below, it is
recommended that Flagstar's Motion be GRANTED.
filed suit on September 10, 2018 in the Fifteenth Judicial
District in Lafayette, Louisiana to enforce its security
interest in property allegedly owned by Edna Cormier and the
purported heirs of Ms. Cormier's deceased husband, Craig
Cormier. (Rec. Doc. 1-1). On July 29, 2019, Ms. Cormier,
proceeding pro se, filed a Notice of Removal. (Rec.
Doc. 1). She alleged:
This is a PETITION TO ENFORCE SECURITY INTEREST BY EXECUTORY
PROCESS against Real Property located at 214 Begnaud Dr,
Lafayette, La, which was filed in state court on September
10, 2018, by Flagstar Bank, FSB ("Flagstar")
against petitioner EDNA BOBINOX CORMIER, and six (6) other
people who are improperly joined in this case and has nothing
at all to do with the property in dispute. Flagstar Bank
Claims and [sic] interest from a purported assignment from
Mortgage Electronic Registration System which is in heated
A sale of the property is scheduled for Wednesday, July 31,
2019, and none of the parties including Petitoner [sic], Edna
Bobinox Cormier have been properly served with process. This
is thus an illegal sale of the property and petitioner's
property rights protected under federal law and constitution
are being violated.
(Rec. Doc. 1, at 3).
Cormier did not identify any particular law or provision of
the Constitution which Flagstar allegedly violated. Flagstar
filed the instant Motion to Remand on August 19, 2019 on the
sole ground that Ms. Cormier's removal was untimely.
(Rec. Doc. 5).
federal district courts have original jurisdiction over cases
involving a federal question, pursuant to 28 U.S.C.
§1331, and those in which the parties are diverse in
citizenship and the amount in controversy exceeds $75, 000,
pursuant to 28 U.S.C. §1332. Courts may also exercise,
or decline to exercise, supplemental jurisdiction over
certain cases. 28 U.S.C. §1367; Preston v. Tenet
Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 804,
810 (5th Cir.2007). Generally, upon the filing of a motion to
remand, the removing party bears the burden to prove that
federal jurisdiction exists. De Aguilar v. Boeing
Co., 47 F.3d 1404, 1408 (5th Cir.1995).
U.S.C. §1441 and §1446 provide the procedural
mechanism by which a party may remove a matter from state
court to a federal district court. Flagstar challenges Ms.
Cormier's removal on the grounds of timeliness.
The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
the thirty-day time limit of §1446(b) may be waived, the
plaintiff can assert his objection to an untimely removal by
filing a motion to remand within thirty days of the filing of
the notice of removal. §1447; In re Shell Oil
Co.,932 F.2d 1518, 1523 (5th Cir. 1991). Ms. Cormier
was served with Flagstar's suit on April 12, 2019. (Rec.
Doc. 5-3). She did not file the notice of removal until July
29, 2019, well after the thirty-day deadline to remove. (Rec.
Doc. 1). Flagstar timely filed its Motion to Remand on August