George v. Wells Fargo Bank, N.A.
| Decision Date | 07 January 2014 |
| Docket Number | CASE NO. 13-80776-CIV-MARRA |
| Court | U.S. District Court — Southern District of Florida |
| Parties | DEREK GEORGE and ANNETTE GEORGE, individually, as husband and wife, and as the parents and natural guardians of JOHN PAUL GEORGE, a minor, Plaintiff, v. WELLS FARGO BANK, N.A., f/k/a WELLS FARGO HOME MORTGAGE, INC., a for profit corporation, Defendant. |
This cause is before the Court upon Defendant's Motion to Dismiss (DE 4), Defendant's Motion for Relief from Discovery (DE 7) and Plaintiffs' Verified Motion to Remand (DE 8). The Court has carefully considered the Motions and is otherwise fully advised in the premises.
On or about November 6, 2012, Plaintiffs Derek George, Annette George and John Paul George ("Plaintiffs"), who are Florida residents, filed a Complaint against Defendant Wells Fargo Bank, N.A. ("Defendant") in the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. (Compl., DE 1-3.) Defendant was served on February 4, 2013. (Summons, DE 1-3.) The Complaint brings a claim for breach of contract (count one) and intentional infliction of emotional distress (count two). According to the allegations, Plaintiffs reside in Juno Beach, Florida and Derek and Annette George, who are husband and wife, obtained a mortgage fromDefendant.1 (Compl. ¶ ¶ 2, 6.) The purchase price of the home was $713,500.00. It was financed by a mortgage of $570,800 with a 20% down payment of $142,700.00. (Compl. ¶ ¶ 8.) Plaintiffs requested a loan modification from Defendant on June 27, 2008. (Compl. ¶ 10.) Defendant agreed to a temporary loan modification and eventually the parties entered into a permanent loan modification. (Compl. ¶ 12.) Without any warning, Defendant reneged on the permanent loan modification. (Compl. ¶ 14.)
Soon thereafter, on February 25, 2013, Defendant filed a motion to dismiss the complaint in state court. (Motion, DE 1-3.) On July 17, 2013, Plaintiff filed an Amended Complaint in state court. (Am. Compl., DE 1-3.) On July 29, 2013, Plaintiffs filed their responses to Defendant's Request for Admissions. (Admissions, DE 1-2.) Those responses stated that the damages sought exceeded $75,000.00, exclusive of interest and costs. (Id.) On August 8, 2013, Defendant filed a Notice of Removal. (DE 1.)
The Amended Complaint brings eight counts: breach of contract (count one); intentional infliction of emotional distress (count two); a violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUPTA") (count three); fraud by concealment (count four); fraud in the inducement (count five); violation of the Home Affordable Modification Program ("HAMP") (count six); promissory estoppel (count seven) and unjust enrichment (count eight).
Plaintiffs have filed a motion to remand and argue that Defendant waived its ability to remove this action because it did not file its notice of removal within 30 days of being served with the initial complaint. Plaintiffs claim that the original complaint contained jurisdictionalallegations supporting diversity jurisdiction and that it had always been evident from the face of the initial complaint that the damages sought by Plaintiffs exceeded $75,000.00.2 In response, Defendant argues that the initial complaint did not conclusively show that the amount in controversy exceeded $75,000.00.
Defendant moves to dismiss the Amended Complaint on the following grounds: (1) the Amended Complaint does not allege a breach of a specific contract term; (2) the intentional infliction of emotional distress claim fails as a matter of law; (3) FDUPTA expressly exempts banks; (4) the Amended Complaint fails to allege conditions precedent; (5) the fraud claims are not pled with specificity; (6) HAMP does not provide a private cause of action; (7) the unjust enrichment claim must be dismissed because an express contract exists; (8) Plaintiffs have failed to comply with the bank statute of frauds; (9) claims on behalf of Annette and John Paul George must be dismissed because they are non-parties to the contracts; (10) punitive damages must be dismissed or stricken; (11) the jury demand is improper and (12) the scandalous allegations must be stricken.
It is axiomatic that federal courts are courts of limited jurisdiction. Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). A federal district court may exercise subject matter jurisdiction over a civil action in which only state law claims are alleged if the civil action arises under the federal court's diversity jurisdiction. 28 U.S.C. § 1332(a)(1). Jurisdiction based on diversity of citizenship exists in civil actions where the amount incontroversy exceeds $75,000 and the action is between "citizens of different States." 28 U.S.C. § 1332(a)(1). Under diversity jurisdiction, an "action shall be removable only if none 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). Removal is "intended to protect out-of-state defendants from possible prejudices in state court." Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006).
A notice of removal cannot be filed more than 30 days after service of the summons and complaint upon the defendant. 28 U.S.C. § 1446(b); Thomas v. Bank of America Corp., 570 F.3d 1280, 1282 (11th Cir. 2009). Petitioning for removal outside the 30-day window constitutes a defect in removal procedure. Kowallek v. Prestia, 329 F. App'x 897, 898 (11th Cir. 2009); Wilson v. General Motors Corp., 888 F.2d 779, 780 (11th Cir.1989); In re Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir.1993). The requirement that the notice of removal has to be filed within 30 days after the receipt by defendant of the complaint is mandatory and failure to comply with such requirement is a defect in removal which justifies remand of case. 28 U.S.C. § 1446(b), (c); Eparvier v. Fortis Ins. Co., 312 F.App'x 185, 187 (11th Cir. 2008).
Removal jurisdiction is construed narrowly with all doubts resolved in favor of remand. See Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). The removing party has the burden of demonstrating the propriety of removal. Diaz v. Shepard, 85 F.3d 1502, 1505 (11th Cir. 1996). The sufficiency of the amount of controversy is determined at the time of removal. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010) (). "The absence of factual allegations pertinent to the existence of jurisdiction is dispositive and, in such absence,the existence of jurisdiction should not be divined by looking to the stars." Lowery v. Alabama Power Co., 483 F.3d 1184, 1215 (11th Cir. 2007).
The Court finds that the original Complaint did not permit Defendant to determine that the amount in controversy exceeded $75,000.000. While the original Complaint alleged Plaintiff purchased property for $713,500, made a $142,700 down payment and obtained a $570,800 loan, the original Complaint did not state that Plaintiffs sought to recover the original loan amount or down payment. In fact, there is nothing in the original Complaint that shows any relationship between the price of the home and the damages sought. The original Complaint brought claims for breach of the loan modification and emotional distress. With respect to the loan modification, the original Complaint does not allege by how much the monthly payment would be reduced or for how long. Nor does the original Complaint allege the amount of damages caused by the emotional distress.
Nonetheless, Plaintiffs contend remand is appropriate. In support, Plaintiffs rely on Lopez v. Lexington Ins. Co., No. 2:12-cv-525-FtM-29DNF, 2013 WL 1365723 (M.D. Fla. Apr. 4, 2013). There, the plaintiffs sued their homeowner's insurance policy for breach of contract arising from hurricane damage to their home. Id. at * 1. The complaint alleged that it sought an amount in excess of $15,000.00, but also stated that they expended nearly $1,000,000.00 to repair and remediate the property. Id. at * 1. The complaint identified a covered loss and damages related to their home, personal property, loss of use, repair costs, and additional living expenses. Id. at * 2. These damages were described in the portion of the complaint addressing "covered loss." Id. at * 3. The defendant claimed the case was not removable until it received a response to admissions which stated the plaintiffs sought damages in excess of $75,000.00. Id. at* 1. The Court disagreed, finding that it was apparent on the face of the complaint that the amount in controversy exceeded the jurisdictional requirements. Id. at * 3.
The Court finds Lopez inapposite. Unlike here, the type of expenses the plaintiffs in Lopez incurred were clearly identified and were linked to the failure of the defendant insurance company to pay for those repairs. Here, while the original complaint stated amounts of money (i.e., the down payment, the purchase price of house, etc.), it did not link those amounts to any of the causes of action.
Nor is the Court persuaded by Plaintiffs' argument that because the original Complaint reserved the right to pursue punitive damages, it was clear that the amount in controversy requirement was met. Merely by including a prayer for punitive damages does not meet the amount in controversy requirement. "Drawing such a conclusion would be nothing more than speculation and is impermissible." Marcenaro v. Creative Hairdressers Inc., No. 12-60236-CIV, 2012 WL 1405690, at * 3 (S. D. Fla. Apr. 23, 2012).
For the foregoing reasons, the Court concludes that Defendant timely removed the case and the motion to remand is denied.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief."...
To continue reading
Request your trial