United States District Court, S.D. Mississippi, Northern Division
BETSY PEARL SMITH, AS EXECUTRIX OF THE ESTATE OF DESSIE R. WARREN WILSON, DECEASED PLAINTIFF
AMERICAN ADVISORS GROUP, INC. DEFENDANT
ORDER AND OPINION
Bramlette, UNITED STATES DISTRICT JUDGE
cause is before the Court on plaintiff Betsy Pearl Smith,
acting as executrix of the estate of Dessie R. Warren Wilson,
(“Smith”)'s Motion to Remand (docket
entry 7). Having carefully considered the motion,
response, and applicable statutory and case law, and being
otherwise fully informed in the premises, the Court finds and
orders as follows:
2008, Dessie Warren Wilson (“Wilson”) purchased a
home and two lots located at 242 Western Hills Drive in
Jackson, Mississippi, (“the property”) for
approximately $157, 000.00. See Doc. 1-1, p. 10. Wilson's
great nephew, Tommy Myers (“Myers”), subsequently
obtained a Special Warranty Deed conveying one lot of
Wilson's Western Hills property to him. Id. at
4. Myers then secured loans against the property, which
authorized him to receive $231, 000.00. Id. at 7.
After finding that Myers acquired Wilson's property
through fraud and undue influence, the Chancery Court of
Hinds County entered a Final Judgment on July 11, 2016,
declaring the Special Warranty Deed void ab initio.
See Id. at 9-22.
April 20, 2017, plaintiff Betsy Pearl Smith
(“Smith”), acting as executrix of Wilson's
estate, commenced the present action in the Chancery Court of
Hinds County to rescind the deeds of trust executed by Myers
and encumbering the Western Hills property. According to
Smith, the defendant, American Advisors Group, Inc.
(“AAG”), is the current holder and beneficiary
seeking to enforce the deeds of trust executed by Myers, and
“upon information and belief,  Myers is in default as
to the debt he owes . . . and [the defendant] has commenced,
or is threatening to commence, foreclosure proceedings with
intent to sell [the] property.” Id. at 5. AAG
removed the action to federal court on May 22, 2017, and
Smith filed her motion to remand shortly thereafter on June
28 U.S.C. § 1441, “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction may be removed . . . 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). The defendant's
removal is premised on the Court's diversity jurisdiction
under 28 U.S.C. § 1332. See Doc. 1. AAG, as the removing
party, bears the burden of proving that federal jurisdiction
exists and that removal is proper. Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002). When considered on a motion to remand, federal removal
statutes are to be strictly construed against removal, and
all ambiguities or doubts are resolved in favor of remand.
moving to remand, Smith claims that: (1) removal was
untimely, (2) the Court lacks diversity jurisdiction, and (3)
the Court should abstain from hearing the case.
Alternatively, she asserts that the issues presented should
be certified to the Mississippi Supreme Court. The Court
shall address each argument in turn.
courts have original diversity jurisdiction over civil
actions between citizens of different states where the amount
in controversy exceeds § 75, 000, exclusive of interest
and costs. 28 U.S.C. § 1332(a). Diversity of citizenship
between the parties in this case is undisputed. Instead, Smith
maintains that the Court lacks jurisdiction because AAG has
failed establish an amount in controversy exceeding $75, 000.
According to Smith, the lack of monetary damages, coupled
with the defendant's failure to establish any claim in
excess of $75, 000, requires remand.
complaint fails to set forth a specific amount of damages, as
in the case sub judice, the removing party must
prove by a preponderance of the evidence that the amount in
controversy exceeds the jurisdictional minimum. De
Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993).
The removing defendant may satisfy this burden by either (1)
showing that it is “facially apparent” from the
complaint that the plaintiff's claims exceed $75, 000 or
(2) introducing “summary judgment-type” evidence
to show that the amount in controversy requirement is met.
Kirby v. Bank of America, 2010 WL 114201, at *4
(S.D.Miss. Jan. 7, 2010) (citing White v. FCI USA,
Inc., 319 F.3d 672, 675 (5th Cir. 2003)). Jurisdiction
is judged by the amount in controversy at the time of
removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d
880, 883 (5th Cir. 2000).
the face of the Complaint and the exhibits attached thereto,
it is facially apparent that the amount in controversy
exceeds the jurisdictional minimum in this case. In cases
seeking equitable relief, the amount in controversy “is
measured by the value of the object of the litigation,
” i.e. the value of the right to be protected or the
extent of the injury to be prevented. Garcia v.
Koch Oil Co. of Tex., Inc., 351 F.3d 636 (5th Cir. 2003)
(quoting Hunt v. Wash. State Apple Adver.
Comm'n, 432 U.S. 333, 347 (1977)); Leininger v.
Leininger, 7052d. 727, 729 (5th Cir. 1983)).
“[W]here a plaintiff seeks to rescind or otherwise
declare a contract to be unlawful, the amount in controversy
is judged by the consequences of such rescission or
declaration to all litigants.” Roberts v.
Chandaleur Homes, Inc., 237 F.Supp.2d 696, 698
(S.D.Miss. 2002); see also Kirby, 2010 WL 114201, at
*4 (the amount in controversy in an action seeking rescission
of loan note and deed of trust was “based upon the
pecuniary consequences to those involved in the
litigation”). The state court's Opinion and Order,
which is attached and incorporated in Smith's Complaint
as Exhibit A, acknowledges that the property was purchased by
Wilson for $157, 000.000, and that the deeds of trust
executed by Myers were secured for a sum of $231, 000.00.
Doc. 1-1, p. 7. While the parties disagree about which value
represents the “object of the litigation, ” an
amount in controversy exceeding the jurisdictional minimum is
clearly apparent regardless of whether the property value or
the value of the deeds of trust is controlling. Should Smith
prevail, she will keep the home free from encumbrance; if she
is unsuccessful, however, she will retain ownership subject
to the encumbrance. Rescission of the deeds of trust would
thus allow Smith to avoid a potential pecuniary consequence
exceeding $75, 000.
assuming that the requisite amount in controversy is not
facially apparent from the initial pleadings, AAG has
produced records from the Hinds County Tax Assessor assigning
a value of $103, 920.00 to the property, along with a copy of
the two deeds of trust Smith seeks to rescind, which confirm
that the deeds secure a sum of $231, 000.00. See Docs. 12-1,
12-2, 12-3. The Court is therefore satisfied that AAG has, by
a preponderance of the evidence, established an amount in
controversy surpassing the jurisdictional
threshold. Finding that the jurisdictional
requirements set forth in 18 U.S.C. § 1332(a) have been
met, the Court shall deny Smith's motion to remand on