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Wells Fargo Bank, N.A. v. Worsham

United States District Court, N.D. Mississippi, Aberdeen Division

April 14, 2014

WELLS FARGO BANK, N.A., Plaintiff,


SHARION AYCOCK, District Judge.

Before the Court is Plaintiff's Motion to Remand [4]. Upon due consideration of the motion, responses, rules, and authorities, the Court finds as follows:

Factual and Procedural Background

Plaintiff Wells Fargo Bank, N.A. filed an action to quiet and confirm title and ratify foreclosure sale in the Chancery Court of Lee County, Mississippi on March 11, 2013. Thereafter, on December 30, 2013, Defendants Jerry Wayne Worsham, Jr. and Amy Worsham ("Worshams"), proceeding pro se, filed a Notice of Removal [1] of this action from state court on the basis of diversity jurisdiction. Plaintiff has filed a Motion to Remand [4], contending that removal of this matter is not available on the basis of diversity of citizenship and that removal was untimely. Additionally, Plaintiff argues that the Worshams had no "objectively reasonable basis for seeking removal" and therefore requests that this Court award it costs and fees incurred in responding to removal.


Federal courts are courts of limited jurisdiction. Epps v. Bexar-Medina-Atascosa Counties Water Improvement Dist. No. 1 , 665 F.2d 594, 595 (5th Cir. 1982). Original federal diversity jurisdiction exists "where the matter in controversy exceeds the sum or value of $75, 000.00, exclusive of interest and costs, and is between... citizens of different States." 28 U.S.C. § 1332(a); Addo v. Globe Life & Accident Ins. Co. , 230 F.3d 759, 761 (5th Cir. 2000). The Judiciary Act of 1789 provides that "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, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). However, "[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a)... may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(2).

After removal of a case, the plaintiff may move for remand, and "[if] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). "[B]ecause the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns, which mandate strict construction of the removal statute." Carpenter v. Wichita Falls Indep. Sch. Dist. , 44 F.3d 362, 365-66 (5th Cir. 1995) (internal citations omitted). Moreover, the Fifth Circuit has held that "[a]ny ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand." Manguno v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 723 (5th Cir. 2002) (citing Acuna v. Brown & Root, Inc. , 200 F.3d 335, 339 (5th Cir. 2000)).

Analysis and Discussion

The Worshams state in their Notice of Removal [1] that "[d]iversity of citizenship exists because Plaintiff is not a citizen of Mississippi." However, the Worshams further state that they "are citizens of Mississippi where the action is pending." Thus, pursuant to 28 U.S.C. § 1441(b)(2), it is clear that this Court lacks subject matter jurisdiction and this matter must be remanded.[1]

The Notice of Removal is also defective in that Jerry Worsham was served with process in March 2013 but did not file his Notice of Removal until December 2013, well over the thirty days allowed by statute. See 28 U.S.C. § 1446(b)(2)(B) ("Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.").[2]

Plaintiff requests that the Court award costs and fees incurred in responding to the Notice of Removal. Pursuant to 28 U.S.C. § 1447(c), "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." However, the Fifth Circuit has held that "[t]here is no automatic entitlement to an award of attorney's fees." Am. Airlines, Inc. v. Sabre, Inc. , 694 F.3d 539, 541-42 (5th Cir. 2012) (quoting Valdes v. Wal-Mart Stores, Inc. , 199 F.3d 290, 292 (5th Cir. 2000) (holding that the "mere determination that removal was improper" does not require a district court to award attorney's fees)). Further, "[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied." Martin v. Franklin Capital Corp. , 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). Further,

The Supreme Court has held that "[t]he appropriate test for awarding fees under § 1447(c) should recognize Congress' desire to deter removals intended to prolong litigation and impose costs on the opposing party, while not undermining Congress' basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied." Martin , 546 U.S. at 133, 126 S.Ct. 704. Thus, as the Fifth Circuit has recognized, "[i]n that regard, § 1447(c) fee awards are cost recoupments, hence punitive in policy only." Am. Airlines, Inc. , 694 F.3d at 542.

In response to Plaintiff's Motion to Remand, the Worshams offer no explanation for the delay in filing their Notice of Removal nor do they address Plaintiff's argument regarding their status as forum-defendants under 28 U.S.C. § 1441(b)(2). Whereas removal of this matter on the basis of diversity jurisdiction is clearly precluded by statute and the Worshams failed to comply with the statutory requirements regarding timeliness of removal, the Court finds the Worshams lacked ...

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