Opinion
CASE NO. 3:08-CV-695-WKW.
February 18, 2009
MEMORANDUM OPINION AND ORDER
Before the court is a Motion to Remand (Doc. # 7), filed by Plaintiff Benjamin K. Mapp ("Mr. Mapp"). Defendant Deutsche Bank National Trust Company ("the Bank") submitted a Response (Doc. # 10). For the reasons set forth below, the court finds that the Motion to Remand (Doc. # 7) is due to be denied.
I. FACTS AND PROCEDURAL HISTORY
On or about July 21, 2008, Mr. Mapp filed this lawsuit in the Circuit Court of Chambers County, Alabama, against the Bank and GSPRM Loan Trust 2006-1 (collectively "Defendants"). Mr. Mapp alleges that Defendants negligently, wantonly and otherwise wrongfully foreclosed on his home, thereby causing unjust enrichment. (Compl. ¶¶ 25-39 (Notice Removal Ex. A Doc. # 1).) Mr. Mapp filed an ex parte petition in state court for a temporary restraining order, which was granted. (Compl. ¶¶ 40-42.) For each claim — negligence, wantonness, unjust enrichment and wrongful foreclosure — Mr. Mapp seeks punitive damages in an unspecified amount. (Compl. 6.)
The Bank timely removed the case on August 22, 2008, basing federal jurisdiction upon 28 U.S.C. §§ 1441, 1442(a)(1), and 1446. (Notice Removal.) Contesting the propriety of removal, Mr. Mapp filed the present Motion to Remand within thirty days of removal.
The Bank was served with the complaint on July 23, 2008, making August 22, 2008, the thirtieth, and final, day to remove the case under 28 U.S.C. § 1446(b). There are two defendants in this case, but only one of the defendants, the Bank, filed a notice of removal or response in opposition to remand. While removal must be unanimous as to all defendants, see Chicago, R.I. P.R. Co. v. Martin, 178 U.S. 245, 248 (1900), "the district court must wait for a party's motion before remanding a case based on procedural defect," Whole Health Chiropractic Wellness, Inc. v. Humana Med. Plan, Inc., 254 F.3d 1317, 1321 (11th Cir. 2001). Because Mr. Mapp did not challenge removal on this ground within thirty days, any valid objection to removal based on a procedural defect is waived, 28 U.S.C. § 1447(c), and the court considers the Motion to Remand (Doc. # 7) only upon Mr. Mapp's other grounds for lack of federal jurisdiction.
Although the Bank does not refer to 28 U.S.C. § 1332, it is apparent from its reference to diversity of citizenship and its assertion that more than $75,000 is in controversy that the Bank predicates subject matter jurisdiction on § 1332 as well.
II. STANDARD OF REVIEW
"[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However, "[f]ederal courts are courts of limited jurisdiction." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Thus, with respect to cases removed to this court pursuant to 28 U.S.C. § 1441, the law of the Eleventh Circuit favors remand where federal jurisdiction is not absolutely clear. "[R]emoval statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Burns, 31 F.3d at 1095.
III. DISCUSSION
As grounds for his Motion to Remand, Mr. Mapp challenges the propriety of the removal on four grounds, asserting that (1) his complaint should be treated as a counterclaim, (2) the state court's assumption of jurisdiction over the previous in rem action precludes removal, (3) the Bank has waived its right of removal by filing a Notice of Appearance in state court before removing the case, and (4) the jurisdictional amount in controversy requirement is not met. Each of the first three grounds will be addressed briefly, followed by an analysis of diversity jurisdiction.A. Complaint as Counterclaim, State In Rem Jurisdiction, and Waiver of Right to Remove
Mr. Mapp contends that his complaint should be treated as a counterclaim to the Bank's non-judicial foreclosure proceedings. (Mot. Remand 4-5.) The court disagrees.
"A civil action is commenced by filing a complaint with the court." Fed.R.Civ.P. 3; see also Fed.R.Civ.P. 8(a), Black's Law Dictionary (8th ed. 2004) (defining a complaint as "the initial pleading that starts a civil action and states the basis for the court's jurisdiction, the basis for the plaintiff's claim, and the demand for relief"). It was Mr. Mapp who filed an initial pleading to begin this action and to claim otherwise is to disregard the fact that the Bank sought non-judicial foreclosure, which is legal in Alabama, Ala. Code § 7-9A-607(b) (1975). Mr. Mapp has cited no authority to support a conclusion otherwise, and, therefore, his assertion that his complaint is actually a counterclaim is unfounded.
Mr. Mapp asserts that the state court's assumption of jurisdiction in this case prevents removal. (Mot. Remand 5-6, 9-10.) Mr. Mapp's reliance upon Princess Lida of Thurn Taxis v. Thompson, 305 U.S. 456 (1939), however, is misplaced. In that case, the Court addressed the propriety of federal jurisdiction when there was an ongoing state court proceeding. In Princess Lida, there were two separate cases, one state and one federal, but in the present case, upon the Bank's Notice of Removal, the state court proceedings are now before this court for a determination regarding federal diversity jurisdiction. Thus, there are not two overlapping proceedings, and Princess Lida is inapplicable. See Barr v. Hagan, 322 F. Supp. 2d 1280, 1282 (M.D. Ala. 2004) (finding that the " Princess Lida rule" did not require remand of a removed case because there was only one case).
Mr. Mapp also argues that the Bank, by appearing at a preliminary injunction hearing and filing a Notice of Appearance, consented to state court jurisdiction, thereby waiving its right to remove the case to federal court. (Mot. Remand 4-5.) In Haynes v. Gasoline Marketers, Inc., 184 F.R.D. 414 (M.D. Ala. 1999), the court found that "[i]n order to find that a defendant waived its right to remove, a court must find that the defendant clearly and unequivocally intended to waive the right. . . ." Id. at 416 (citing Regis Assocs. v. Rank Hotels Ltd., 894 F.2d 193, 195 (6th Cir. 1990)); see also Fain v. Biltmore Secs., Inc., 166 F.R.D. 39, 40 (M.D. Ala. 1996) ("'[T]he right of removal is not lost by action in the state court short of proceeding to an adjudication on the merits.'" (citation omitted)). There is no evidence of a clear or unequivocal waiver by the Bank. Moreover, the Bank's appearance at the preliminary injunction hearing was an attempt to maintain the status quo, not to litigate the merits of the case, a circumstance which voids the argument that the Bank consented to jurisdiction.
B. Diversity Jurisdiction
Federal district courts may exercise diversity jurisdiction over cases involving citizens of different states where the amount in controversy, exclusive of interest and costs, exceeds $75,000. 28 U.S.C. §§ 1332(a)-1332(b). Mr. Mapp argues that the Bank fails to show that the amount in controversy requirement is met. (Mot. Remand 11.) There is no dispute that § 1332(a)(1)'s diversity of citizen requirement is met.
The issue at this stage is the propriety of the removal. A defendant may base removal jurisdiction either (1) on "an initial pleading" or (2) at a later time, on "'an amended pleading, motion, order or other paper.'" Lowery v. Ala. Power Co., 483 F.3d 1184, 1212 (11th Cir. 2007) (citing 28 U.S.C. § 1446(b)), cert. denied, 128 S. Ct. 2877 (2008). In the second scenario, the amended pleading, motion or other paper must have been "received" by the defendant from the plaintiff. Id. at 1213 n. 63.
If a plaintiff's challenge to a diversity-based removal is timely, the court is limited to reviewing "only evidence available when the motion is remand is filed — i.e., the notice of removal and accompanying documents." Id. at 1214. Therefore, the court is strictly tied to the Notice of Removal and its accompanying documents when examining its jurisdiction. "[N]either the defendants nor the court may speculate in an attempt to make up for the notice's failings," id. at 1214-15, and unless the jurisdictional amount "is either stated clearly on the face of the [removal] documents before the court, or readily deducible from them," id. at 1211, the case must be remanded.
Here, the Bank removed this action on the basis of the initial complaint. The Bank's Notice of Removal is accompanied by the complaint and several filings from the state court. The court, therefore, can consider only the complaint and these attached documents in determining the propriety of removal.
As stated, only § 1332(a)'s amount in controversy requirement is at issue. The Bank asserts that the market value of the house at issue is the proper measure of the amount in controversy (Notice Removal ¶ 2; Opp'n to Summ. J. 4), while Mr. Mapp contends that the amount in controversy is not met. Mr. Mapp says that the proper measure of the amount in controversy is "the amount of equity in the home," which is less than $75,000, and Mr. Mapp instructs the court to " See Exhibit 'B'," (Mot. Remand 17), but fails to cite case law supporting his theory.
This Exhibit, along with the other exhibits to which Mr. Mapp refers throughout his Motion to Remand, are nowhere to be found in the record and, therefore, are not before the court for consideration. Nevertheless, as discussed infra, the evidence that is in the record, as provided by the Bank, is sufficient for the court to conclude that the amount in controversy exceeds $75,000.
In Siewak v. AmSouth Bank, No. 8:08-CV-927-T-24EAJ, 2006 WL 3391222 (M.D. Fla. Nov. 22, 2006), the court discussed the measure of the amount in controversy where plaintiffs seek to avoid enforcement of a judgment lien against their property. The court found that the proper measure of the amount in controversy was the subject property's market value, because this measured the object of the litigation from the plaintiff's viewpoint. Id. at *3-5.
Although Mr. Mapp's complaint does not contain a demand for a specific dollar amount, it requests that "Defendant be enjoined from continuing with its foreclosure sale." (Compl. 6.) The removal documents, including the Note (Notice Removal 7) and Mortgage (Notice Removal 11), establish unambiguously that the value of the house is at least $120,500. Applying Siewack, which the court finds instructive, $120,500 is the amount in controversy.
Mr. Mapp's argument regarding the home's equity as a measure of the amount in controversy is unavailing. He cites no authority for his position, and there is authority to the contrary. If the home is sold at foreclosure, it will be sold for its value, not its equity. See, e.g., Frontera Transp. Co. v. Abaunza, 271 F. 199, 200 (5th Cir. 1921) ("[T]he value of the lands, not the amount required to redeem, is the amount in controversy."). Mr. Mapp seeks to prevent the foreclosure sale on his home, and the value of that home, as demonstrated by the documents before the court, exceeds the jurisdictional minimum of $75,000. Accordingly, the court finds that it properly exercises diversity jurisdiction pursuant to 28 U.S.C. §§ 1332(a)(1) and 1441.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED that Mr. Mapp's Motion to Remand (Doc. # 7) is DENIED. A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).