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Griffin v. ABN Amro Mortgage Group, Inc.

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

August 22, 2014

ANNIE Y. GRIFFIN and FREDERICK GRIFFIN, Plaintiffs.
v.
ABN AMRO MORTGAGE GROUP, INC., its affiliates, heirs, and assigns; MORRIS & ASSOCIATES; EMILY K. COURTEAU, individually and in her capacity as substituted trustee on the deed of trust; CITIMORTGAGE, INC. as successor in interest to ABN; ABC COMPANIES; and JOHN DOES 1-10 Defendants.

MEMORANDUM OPINION GRANTING PLAINTIFFS' MOTION FOR REMAND

GLEN H. DAVIDSON, Senior District Judge.

Presently before the Court is Plaintiffs' motion for remand [7]. Plaintiffs argue remand is appropriate on two purported grounds: (1) the removal procedure itself was defective; and (2) Defendants are using removal for purely strategic advantage, because diversity jurisdiction is not established. Upon due consideration and for the reasons stated below, the Court finds that the case must be remanded due to lack of diversity jurisdiction.

(1) Removal Procedure

As an initial matter, the Court finds that the removal procedure itself was not defective. Plaintiffs argue that Defendants ABN AMRO Mortgage Group, Inc. and CitiMortgage, Inc. failed to properly join in the notice of removal within 30 days of service of process, pursuant to 28 U.S.C. § 1446(b). Plaintiffs further argue that Defendants Emily K. Courteau and Morris & Associates had no authority to act on behalf of Defendants ABN AMRO Mortgage Group, Inc. and CitiMortgage, Inc. at the time the notice of removal was filed.

A case may be remanded upon a motion filed within 30 days after the filing of the notice of removal on any defect except subject-matter jurisdiction, which can be raised at any time by any party or sua sponte by the district court. Wachovia Bank, N.A. v. PICC Prop. & Cas. Co., 328 F.App'x 946, 947 (5th Cir. 2009). "[A]ll defendants who have been properly joined and served must join in or consent to the removal of the action" to federal court. 28 U.S.C. § 1446(b)(2)(A); see Ortiz v. Young, 431 F.App'x 306, 307 (5th Cir. 2011) (per curiam) (citing Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002)). "[F]ailure to do so renders the petition defective." Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 (5th Cir. 1988); see Harris v. Edward Hyman Co., 664 F.2d 943, 944 & n. 3 (5th Cir. 1981). Based on a 2011 amendment to 28 U.S.C. § 1446 adopting the last-served defendant rule, "[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons... to file the notice of removal." 28 U.S.C. § 1446(b)(2)(B).

In this case, Plaintiffs filed their complaint [2] in the Chancery Court of Desoto County, Mississippi on January 2, 2014. It is undisputed that Defendants ABN AMRO Mortgage Group, Inc. and CitiMortgage, Inc. were both served with process on January 9, 2014. See Proof of Service [7-2]-[7-4]. On February 4, 2014, Defendants Morris & Associates and Emily K. Courteau filed the notice of removal [1] on the basis of diversity jurisdiction. Subsequently, six days later, on February 10, 2014, Defendants ABN AMRO Mortgage Group, Inc. and CitiMortgage, Inc. filed their consent [6] to the notice of removal. Therefore, as Defendants urge, pursuant to the last-served defendants rule, Defendants' 30-day deadline to remove this matter was February 10, 2014, the date the consent to removal was filed. All Defendants either removed or indicated their consent to removal within the 30-day period that commenced on January 9, 2014. Accordingly, Plaintiff's argument in this respect is without merit, and the Court finds that remand is not warranted on this ground. However, as stated below, the case must be remanded because the removing Defendants have failed to establish diversity jurisdiction.

(2) Diversity Jurisdiction

The removal statute provides in pertinent part:

Except as otherwise expressly provided by Act of Congress, 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). Thus, Defendants can remove the action to this Court on the basis of diversity jurisdiction if this Court would have had original jurisdiction over the action. See Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing 28 U.S.C. § 1441(a)). Defendants, as the removing party seeking to invoke federal diversity jurisdiction, bear the burden of establishing both that the parties are diverse and that the amount in controversy exceeds $75, 000. See 28 U.S.C. § 1332(a); Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003) (citing St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)).

District courts must be assured of their own jurisdiction, and it is proper for a court to challenge its subject-matter jurisdiction sua sponte. See Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (citing Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." FED. R. CIV. P. 12(h)(3).

a. Diversity of Citizenship

Removing defendants who seek to establish diversity jurisdiction must "distinctly and affirmatively allege[]" each party's citizenship and show that the plaintiff and defendant are citizens of different states. Stafford v. Mobil Oil Corp., 945 F.2d 803, 804-05 (5th Cir. 1991) (citations omitted). "[C]itizenship requires residency and the intent to return or remain in the state." Preston v. Tenet Healthsystem Mem'l Med. Ctr., 485 F.3d 804, 815 (5th Cir. 2007) (citing Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989); Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954)). "A United States citizen who is domiciled in a state is a citizen of that state." Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996). For the citizenship of corporations, under 28 U.S.C. § 1332(c), the removing party must identify the state of incorporation and the principal place of business. Nadler v. Am. Motor Sales Corp., 764 F.2d 409, 413 (5th Cir. 1985). "[W]hen jurisdiction depends upon diverse citizenship[, ] the absence of sufficient averments or of facts in the record showing such required diversity of citizenship is fatal and cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived." Thomas v. Bd. of Trs. of the Ohio State Univ., 195 U.S. 207, 211, 25 S.Ct. 24, 49 L.Ed. 160 (1904) (citations omitted).

Defendants maintain in their notice of removal that Plaintiffs are citizens of Mississippi and that Defendant Morris & Associates is a sole proprietorship "domiciled in Louisiana, " statements also made in Plaintiffs' complaint. See Defs.' Notice of Removal [1] at 1; Pls.' Compl. [2] ¶¶ 3-4, 7. Defendants have ...


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