Wells Fargo Bank, N.A. v. Campbell

• Decision Date: 03 September 2015
• Docket Number: CA 15-0410-KD-C
• Parties: WELLS FARGO BANK, N.A., etc., Plaintiff, v. SHELIA CAMPBELL and RAYFORD CAMPBELL, Defendants.
• Court: U.S. District Court — Southern District of Alabama

WELLS FARGO BANK, N.A., etc., Plaintiff, v. SHELIA CAMPBELL and RAYFORD CAMPBELL, Defendants.

CA 15-0410-KD-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

September 3, 2015

REPORT AND RECOMMENDATION

This matter is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the notice of removal (Doc. 1;see also Docs. 4 & 5 (evidence filed in support of removal)),¹plaintiff's motion to remand(Doc. 9), and the response in opposition (Doc. 12) penned and signed by Shelia Campbell(id. at 29).Upon consideration of the foregoing pleadings, the Magistrate Judge recommends that the CourtGRANTplaintiff's motion to remand(Doc. 9).

FINDINGS OF FACT

Wells Fargo Bank, N.A., etc., filed a statutory ejectment action against defendantShelia Campbell in the Circuit Court of Mobile County, Alabama on October 20, 2014, seeking possession of the real property described in the complaint (that is, Campbell's house)"together with money damages for the wrongful retention of said real property and an order that the Defendant has forfeited the right to redemption for failing to vacate the property, plus such other, further and different relief to which Plaintiff is entitled under these premises, and costs of court."(Doc. 1, COMPLAINT.)Shelia Campbell was served with a copy of the summons and complaint, via her husband, Rayford Campbell, on November 11, 2014.(Doc. 9, Exhibit 1, at 2.)²Approximately one month after suing just Shelia Campbell, that is, on November 19, 2014, plaintiff amended its complaint to add as a partydefendantRayford Campbell.(SeeDoc. 1, AMENDED COMPLAINT.)Rayford Campbell was served with a copy of the summons and complaint on December 29, 2014.(Doc. 9, Exhibit 1, at 1.)

On June 19, 2015, Shelia Campbell filed in Mobile County Circuit Court a 652-page pleading entitled "'Counter Lawsuit and Complaint Motion Adjoining Plaintiff's Complaint Against Their Actions To (Vacate Property And Ejectment).'"(See, e.g., Doc. 4, MOTION TO STRIKE COUNTERCLAIMS OR "COUNTER LAWSUITS,"at ¶ 1.)Wells Fargo filed its motion to strike counterclaims or counter lawsuits on July 23, 2015(seeid.); Mobile County Circuit JudgeRick Stout granted the plaintiff's motion on July 27, 2015(seeDoc. 4, July27, 2015 ORDER).

On the morning of August 12, 2015, Judge Stout heard oral argument on a motion for summary judgment that previously had been filed by Wells Fargo.(Doc. 9, at ¶ 7.)At 9:14 a.m. on August 12, 2015, Shelia Campbell filed a notice of removal in the Mobile County Circuit Court(seeDoc. 1, at 1) and filed the same notice of removal in this Court at 10:57 a.m. on August 12, 2015(seeDoc. 1, Display Receipt).In the notice of removal, the removing defendant or defendants appear to seek removal of this case on the following grounds: (1) counterclaim in 337 proceedings; (2) fraud upon the Court; (3) fraud under Rules 59(b)and60(b) of the Federal Rules of Civil Procedure;(4) FDCPA; (5)42 U.S.C. §§ 1982,1983, and1985; and (6) the Deed of Trust Act and the Consumer Protection Act.(SeeDoc. 1, at 2;compareid.withDoc. 12, at 11-15 & 18-19.)Before addressing whether these grounds provide a basis for removal, the undersigned first outlines relevant case law with respect to jurisdiction in general and then touches upon diversity jurisdiction given that specific reference is made to diversity jurisdiction (compareDoc. 1, at 5-6 & 13-14withDoc. 12, at 17, 19 & 22), with the contention being made that the counterclaim seeks damages in excess of $75,000 (compareDoc. 1, at 2withDoc. 12, at 23 & 24).

CONCLUSIONS OF LAW

A.Jurisdiction in General.

In general, removal of a case from state court to federal court is proper if the case originally could have been brought in federal court.See28 U.S.C. § 1441(a).However, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."28 U.S.C. § 1447(c).The removingdefendants must bear "the burden of demonstrating federal jurisdiction."Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4(11th Cir.1998)(citation omitted);see alsoFriedman v. New York Life Ins. Co., 410 F.3d 1350, 1353(11th Cir.2005)("As this Court noted in Kirkland v. Midland Mortgage Co., 243 F.3d 1277(11th Cir.2001), '[i]n removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists.'");McCormick v. Aderholt, 293 F.3d 1254, 1257(11th Cir.2002)("[T]he party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction.").Moreover, "[f]ederal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand."Russell Corp. v. American Home Assurance Co., 264 F.3d 1040, 1050(11th Cir.2001)(citation omitted);see alsoAllen v. Christenberry, 327 F.3d 1290, 1293(11th Cir.)("[R]emoval statutes should be construed narrowly, with doubts resolved against removal."), cert. denied, 540 U.S. 877, 124 S.Ct. 277, 157 L.Ed.2d 140(2003);University of South Alabama v. American Tobacco Co., 168 F.3d 405, 411(11th Cir.1999)("Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly. . . .Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court.");seeKokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391(1994)("Federal courts are courts of limited jurisdiction.They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree[.]"(internal citations omitted)).Stated differently, because federal courts are courts of limited jurisdiction "[i]t is . . . presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]"Kokkonen, supra, 511 U.S. at 377, 114 S.Ct. at 1675(internal citationsomitted).Indeed, "[b]ecause removal infringes upon state sovereignty and implicates central concepts of federalism, removal statutes must be construed narrowly, with all jurisdictional doubts being resolved in favor of remand to state court."Brown v. Endo Pharmaceuticals, Inc., 38 F.Supp.3d 1312, 1318(S.D. Ala.2014)(citation omitted).

Before turning to whether the defendants have satisfied their burden of establishing federal jurisdiction—whether diversity or federal question jurisdiction, compareStillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332(11th Cir.2011)("An action filed in state court may be removed to federal court based upon diversity or federal questions jurisdiction.")with CitiMortgage, Inc. v. Dhinoja, 705 F.Supp.2d 1378, 1381(N.D. Ga.2010)("Under 28 U.S.C. § 1331, a federal court may exercise jurisdiction over a case if it presents a question of federal law. . . .Another basis of removal jurisdiction is diversity of citizenship under 28 U.S.C. § 1332.")—the undersigned first considers Wells Fargo's procedural argument that the defendants failed to timely file notice of removal.(SeeDoc. 9, at 5-7.)

As a procedural matter, the removal must be timely.See, e.g., Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298, 1302(M.D. Ala.2003)("The time limit in 28 U.S.C. § 1446(b) is 'mandatory and must be strictly applied.'");cf.Moore v. North America Sports, Inc., 623 F.3d 1325, 1329(11th Cir.2010)("[T]he timeliness of removal is a procedural defect-not a jurisdictional one.").

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1).Here, of course, it is clear to the undersigned that the defendants' removal of this action is improper.The defendants purport to remove this Alabamaejectment action filed in the Circuit Court of Mobile County, Alabama on October 20, 2014—originally served on Shelia Campbell by her husband's acceptance of service on November 11, 2014, with the amended complaint adding Shelia's husband, Rayford Campbell, as a partydefendant, being served on Rayford Campbell on December 29, 2014—to this Court on August 12, 2015, after the ejectment action was litigated in state court for over eight (8) months.The removal is, therefore, untimely, seeHSBC Bank USA Nat'l Ass'n v. Bobrowski, 2015 WL 4506824, *2(M.D. Fla.Jul. 23, 2015)("Defendants purport to remove a foreclosure complaint filed on July 26, 2012.Defendants' notice of removal filed on July 20, 2015, is therefore untimely."), and the Court should find the defendants' removal untimely under § 1446(b)(1).³Nevertheless, even if the removal isregarded as timely, the defendants have simply failed to establish subject matter jurisdiction, whether diversity jurisdiction (§ 1332) or federal question jurisdiction (§ 1331).

B.Diversity Jurisdiction.

Where removal jurisdiction is predicated on diversity of citizenship pursuant to 28 U.S.C. § 1332,⁴ the removing parties bear the burden of establishing complete diversity of citizenship, that is, that the plaintiff is diverse from all the defendants, Triggs, supra, 154 F.3d at 1287(citation omitted), and, in addition, must establish by a preponderance of the evidence that the amount in controversy more likely than not exceeds the $75,000 jurisdictional requirement, Tapscott v. MS Dealer Serv. Corp., 77...