Busby v. Capital One, N.A.

• Decision Date: 20 January 2012
• Docket Number: Civil Action No. 10–1025 (RMU).
• Parties: Wanda BUSBY, Plaintiff, v. CAPITAL ONE, N.A. et al., Defendants.
• Court: U.S. District Court — District of Columbia

841 F.Supp.2d 49

81 Fed.R.Serv.3d 756

Wanda BUSBY, Plaintiff,

v.CAPITAL ONE, N.A. et al., Defendants.

Civil Action No. 10–1025 (RMU).

United States District Court,

District of Columbia.

Jan. 20, 2012.

Wanda Busby, Washington, DC, pro se.

Adrienne J. Lawrence, McGuirewoods LLP, David N. Prensky, Chasen & Chasen, Washington, DC, Jason M. Somensatto, Matthew William Lee, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, McLean, VA, for Defendants.

MEMORANDUM OPINION

Denying the Plaintiff's Motion to Remand; Granting The Plaintiff's Motion to Dismiss Without Prejudice

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This matter is before the court on the pro se plaintiff's motion to remand, or, in the alternative, for voluntary dismissal of her claim. The plaintiff initially alleged a variety of statutory and common law claims against the defendants in connection with a promissory note and deed of trust that was executed by the plaintiff in 1996. Earlier this year, the court dismissed all but one of the plaintiff's claims. The plaintiff now moves to remand or, in the alternative, to voluntarily dismiss her remaining claim without prejudice. Because the court has subject-matter jurisdiction over the plaintiff's remaining claim, the court denies the plaintiff's motion to remand. Because the defendants would not be prejudiced by voluntary dismissal, however, the court grants the plaintiff's motion to voluntarily dismiss her claim without prejudice.

II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiff commenced this action in May 2010 in the Superior Court of the District of Columbia. See generally Compl. She alleges that Capital One, N.A. (“Capital One”) and an attorney, David Prensky (“Prensky”) engaged in tortious conduct in connection with a promissory note and deed of trust that was executed by the plaintiff in 1996. See generally id. In her original complaint, the plaintiff asserted a variety of causes of action against the defendants under District of Columbia law, including fraud, breach of fiduciary duty and conversion. Notice of Removal ¶ 1.

On June 9, 2010, the plaintiff amended her complaint to include additional claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq.See generally Am. Compl.; Notice of Removal ¶ 4. On June 17, 2010, the defendants filed a notice of removal in this court, asserting that the district court has subject-matter jurisdiction based on the presence of a federal question, the diversity of the parties and the amount in controversy. See Notice of Removal ¶¶ 10–12.

In July 2010, the plaintiff moved to remand this case to the Superior Court and for joinder of Chasen & Chasen, the law firm with which Prensky is associated, as a defendant in this action. See generally Pl.'s Mot. to Remand (“Pl.'s Mot.”). This court denied both motions in a January 2011 Memorandum Opinion. See generallyMem. Op., 759 F.Supp.2d 81 (D.D.C.2011). Soon thereafter, defendant Capital One moved to dismiss all of the claims against it, and defendant Prensky moved to dismiss all but one of the claims against him. The court granted both motions in March 2011. See generallyMem. Op., 772 F.Supp.2d 268 (D.D.C.2011). Following the court's March 2011 decision, the only remaining claim in this action is the plaintiff's breach of fiduciary duty claim against defendant Prensky.

The plaintiff filed an appeal, which the Circuit summarily rejected as premature. See generally Busby v. Capitol One, N.A., Case No. 11–7035 (D.C.Cir. Sep. 19, 2011), Order. In September 2011, the plaintiff filed a renewed motion for remand or, in the alternative, for voluntary dismissal. See generally Pl.'s Mot. With the plaintiff's motion now ripe for adjudication, the court turns to the parties' arguments and the relevant legal standards.

III. ANALYSIS

A. The Court Denies the Plaintiff's Motion to Remand

1. Legal Standard for Remand

Federal courts are courts of limited jurisdiction and, therefore, the law presumes that “a cause lies outside of [the court's] limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288–89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). According to the removal statute, a defendant may properly remove to federal court an action brought in a state court when original subject-matter jurisdiction exists in the form of diversity. 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Diversity jurisdiction exists when the action involves citizens of different states and the amount in controversy exceeds $75,000.00 per plaintiff, exclusive of interest and costs. 28 U.S.C. § 1332(a); Carden v. Arkoma Assocs., 494 U.S. 185, 187, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990).

Courts must strictly construe removal statutes. Williams v. Howard Univ., 984 F.Supp. 27, 29 (D.D.C.1997) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). The court must resolve any ambiguities concerning the propriety of removal in favor of remand. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir.1999); Nwachukwu v. Karl, 223 F.Supp.2d 60, 66 (D.D.C.2002). When the plaintiff makes a motion to remand, the defendant bears the burden of proving federal jurisdiction. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673;Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921); Nat'l Org. for Women v. Mut. of Omaha Ins. Co., 612 F.Supp. 100, 101 (D.D.C.1985).

If a defect in removal procedures or lack of subject-matter jurisdiction becomes apparent at any point prior to final judgment, the removal court must remand the case to the state court from which the defendants originally removed the case. 28 U.S.C. § 1447(c). A plaintiff might waive the right to a remand on the basis of procedural defects by supplementing a complaint, litigating a summary judgment motion, or proceeding in a trial. Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir.1996); Medlin v. Andrew, 113 F.R.D. 650, 652 (M.D.N.C.1987). In contrast, merely engaging in offensive or defensive litigation (such as limited discovery) especially when the plaintiff has already filed a motion for remand, does not forfeit the right to a remand. Medlin, 113 F.R.D. at 652–53. In the event that the federal court lacks subject-matter jurisdiction, remand is mandatory. Republic of Venez. v. Philip Morris, Inc., 287 F.3d 192, 196 (D.C.Cir.2002); Johnson–Brown v. 2200 M St. LLC, 257 F.Supp.2d 175, 177–78 (D.D.C.2003).

2. The Plaintiff Has Waived Her Right to Seek Remand on the Basis of Procedural Defects in the Defendants' Notice of Removal

The plaintiff argues that the court should remand her action to Superior Court because the defendants' notice of default was procedurally defective. Pl.'s Mot. at 7–8. Specifically, the plaintiff claims that the defendants' notice of removal does not explicitly allege that the amount in controversy exceeds $75,000. Id. The defendants respond by arguing that the plaintiff has waived any procedural challenges to removal by actively litigating in this court. Defs.' Opp'n at 5.

A plaintiff may waive her objections to any procedural defect in removal by affirmatively litigating in federal court. Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir.1996); Ficken v. Golden, 696 F.Supp.2d 21, 26–27 (D.D.C.2010); Moffit v. Balt. Am. Mort., 665 F.Supp.2d 515, 517 (D.Md.2009). Here, the plaintiff has litigated her claim in this court for well over a year. The plaintiff has filed several motions, submitted oppositions to the defendants' motions and pursued an appeal. These acts are sufficient to constitute a waiver of any objections to procedural defects in the removal process. See, e.g., Riggs v. Plaid Pantries, Inc., 233 F.Supp.2d 1260, 1271 (D.Or.2001) (concluding that the plaintiffs had waived any procedural objections to remand by filing motions in federal court); see also Dukes v. S.C. Ins. Co., 770 F.2d 545, 547–48 (5th Cir.1985) (collecting cases).

It is important to note that the plaintiff has waived only her objection to the procedural defects in the defendants' notice of removal; objections that are based on a court's lack of subject-matter jurisdiction may not be forfeited or waived by any party. Arbaugh v. Y & H. Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Accordingly, the court turns to the plaintiff's assertion that the court lacks subject-matter jurisdiction to adjudicate the plaintiff's remaining claim.

3. Diversity Jurisdiction Exists Over the Plaintiff's Remaining Claim

The plaintiff argues that the court lacks subject-matter jurisdiction because the defendants have not shown that the prerequisites to diversity jurisdiction have been satisfied. Pl.'s Mot. at 8–9. The plaintiff does not contest the fact that the parties are diverse; instead, she argues that her case does not meet the amount-in-controversy requirement. Id. The defendants retort that the amount-in-controversy requirement is satisfied because the plaintiff seeks rescission of a $207,000 Note and Mortgage. Defs.' Opp'n at 3–5.

A federal district court has subject-matter jurisdiction over a suit when the amount in controversy exceeds $75,000 and the parties are diverse in citizenship. 28 U.S.C. § 1332(a); DeBerry v. First Gov't Mortg. & Investors Corp., 170 F.3d 1105, 1106 n. 1 (D.C.Cir.1999). If a complaint fails to specify the amount in controversy, a court may independently determine whether that amount meets jurisdictional requirements. Wilson v. U.S. Dep't of Transp., 759 F.Supp.2d 55, 62 (D.D.C.2011). The court may base its determination on the allegations contained within the complaint and the facts that are subsequently developed in the record. See e.g., Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992). To justify dismissal on jurisdictional...