BAC HOME LOANS SERVICING, LP v. LOWERY (S.D.Ind. 11-1-2010)

"When a plaintiff files in state court a civil action over which the federal district courts would have original jurisdiction based on diversity of citizenship, the defendant or defendants may remove the action to federal court. . . ." Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); see 28 U.S.C. § 1441. The removing party bears the burden of demonstrating removal was proper. Schur v. L.A. Weight Loss Centers, Inc. 577 F.3d. 752, 758 (7th Cir. 2009).

A plaintiff objecting to the removal may file a motion asking the district court to remand the case to state court. Caterpillar, 519 U.S. at 69. The plaintiff in this foreclosure action has filed such a motion. The burden therefore rests on the removing party-Lavelle Lowery-to demonstrate that removal was proper.

Lowery shall have through November 16, 2010, in which to demonstrate that removal was proper by establishing that this is a "civil action . . . of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a).

Date: 11/01/2010