Jackson et al v. Litton Loan Servicing, LP

Filing 21

MEMORANDUM OPINION AND ORDER; that 1. The Jacksons's Motion to Remand 11 is GRANTED. 2. This case is REMANDED to the Circuit Court of Russell County, Alabama. 3. The Clerk is DIRECTED to take appropriate steps to effect the remand. 4. All moti ons other than the Motion to Remand decided herein are left for resolution by the Circuit Court of Russell County. Signed by Hon. Chief Judge Mark E. Fuller on 11/29/2010. (jg, )Certified copy of order and docket sheet mailed to Circuit Court of Russell County.

-CSC Jackson et al v. Litton Loan Servicing, LP

Doc. 21

IN THE UNITED STATES COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION ROBERT JACKSON, et al., P la in tif f s , v. L IT T O N LOAN SERVICING, LP, D e f e n d a n t. ) ) ) ) ) ) ) )

C A S E NO. 3:10-cv-813-MEF

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on Plaintiffs Robert and Debra Jackson's (c o lle c tiv e ly "the Jacksons") Motion to Remand filed October 21, 2010. The Court has c o n s id e re d all arguments in support of and in opposition of the Motion to Remand. Contending that this Court has jurisdiction based on 28 U.S.C. § 1332(a), Litton Loan S e rv ic in g , LP ("Litton Loan") removed this case pursuant to 28 U.S.C. § 1441(a). (Doc. # 1). The Jacksons argue, among other things, that remand is necessary in this case b e c a u s e Litton Loan's notice of removal was filed more than one year after the c o m m e n c e m e n t of the case in state court, and therefore that the notice of removal is u n tim e ly based on provisions of 28 U.S.C. § 1446. For the reasons set out herein, the J a c k s o n s ' Motion to Remand (Doc. # 10) is due to be GRANTED. I. FACTUAL AND PROCEDURAL HISTORY O n July 15, 2009, the Jacksons filed suit against Litton Loan in the Circuit Court o f Russell County, Alabama, case number 57-CV-200, alleging that Litton Loan 1

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committed fraud and misrepresentation. (Doc. #1). The Jacksons's complaint seeks an u n s p e c if ie d amount of compensatory and punitive damages, court costs, and "such other a n d further relief" as determined by the jury. (Doc. # 1). Litton Loan filed a Notice of R e m o v a l on December 23, 2009 pursuant to 28 U.S.C. § 1441, contending that this Court h a d jurisdiction under 28 U.S.C. § 1332(a) based upon diversity of citizenship and an a m o u n t in controversy exceeding $75,000. (Case No. 3:09-cv-1165-MEF, Doc. # 1). In s u p p o rt of their contention, Litton Loan cited transcript from the December 3, 2009 d e p o s itio n of Plaintiff Robert Jackson, Alabama state court verdicts exceeding $75,000 in s im ila r cases, and the Jacksons's failure to stipulate about the damages sought. Id. The J a c k s o n s filed a Motion to Remand the case on January 22, 2010. (Case No. 3:09-cv1 1 6 5 -M E F , Doc. # 10). On August 10, 2010, this Court granted the Jacksons's first M o tio n to Remand, finding that Litton Loan had not carried its burden of establishing that th e amount in controversy in this case exceeded the jurisdictional amount of $75,000. (Case No. 3:09-cv-1165-MEF, Doc. # 17). Regrettably, the Court encouraged Litton L o a n to file a subsequent notice of removal if further facts regarding the amount in c o n tro v e rsy could be presented, despite the fact that the order remanding the case was e n te re d more than one year after the commencement of this action.1 Id. Litton Loan has

Litton Loan argues that this Court has "already acknowledged its authority to a c c e p t the instant removal petition and has recognized the equitable reasons for doing so." (Doc. # 13). While the Court did indicate a willingness to entertain a subsequent notice o f removal, such a willingness does not amount to the authority to circumvent the plain la n g u a g e of the statute or the case law of this Circuit. 2

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filed another Notice of Removal (Doc. # 1), and the Jacksons have again filed a Motion to R e m a n d (Doc. # 11). Upon further review by this Court, it is apparent that in the E le v e n th Circuit there is no doctrine of equitable tolling that could circumvent the re q u ire m e n ts 28 U.S.C. § 1446(b), and this motion is due to be DENIED. I I. LEGAL STANDARD F e d e ra l courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. C o . of Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1 9 9 4 ); Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1076 (11th Cir. 1 9 8 3 ). As such, federal courts only have the power to hear cases that they have been a u th o riz e d to hear by the Constitution or the Congress of the United States. Kokkonen, 5 1 1 U.S. at 377. Among the cases over which a federal district court may exercise subject matter ju ris d ic tio n are civil actions in which only state law claims are alleged if the civil action a rise s under the federal court's diversity jurisdiction. See 28 U.S.C. § 1332(a). The d iv e rsity statute confers jurisdiction on the federal courts in civil actions "between c itiz e n s of different states," in which the jurisdictional amount, currently in excess of $ 7 5 ,0 0 0 exclusive of interest and costs, is met. Id. W h e n a case is originally filed in state court, a party may remove it to federal court if the case originally could have been brought in federal court. See 28 U.S.C. § 1441(a); L o w e r y v. Ala. Power Co., 483 F.3d 1184, 1207 (11th Cir. 2007). If a case, as stated by

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the initial pleading, is not removable, "a notice of removal may be filed within thirty days a f te r receipt by the defendant. . . of a copy of an amended pleading, motion, order or other p a p e r from which it may first be ascertained that the case is one which is or has become re m o v a b le ." 28 U.S.C. § 1446(b). However, a case may not be removed on the basis of d iv e rsity jurisdiction "more than one year after commencement of the action." Id. Because removal jurisdiction raises significant federalism concerns, "removal statutes are c o n s tru e d narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties a re resolved in favor of remand." Burns, 31 F.3d at 1095. Accordingly, "§ 1446's time re q u ire m e n t is mandatory and must be strictly applied." Jones v. H&S Homes, L.L.C., N o . 3:08-cv-57, 2008 WL 4600999, at *2 (M.D. Ala. October 15, 2008) (Fuller, C.J.). District courts have recognized that there may be a doctrine of equitable tolling a p p lic a b le to the removal statutes. See Cybernetics & Servs., Inc. v. Hitachi Data Sys. C o r p ., No. 3:09-cv-231-J-32HTS, 2009 WL 2151197, at *2 (M.D. Fla. July 16, 2009) (" T h e principles governing the fraudulent joinder doctrine provide some basis to conclude th a t a plaintiff's litigation posturing may in certain circumstances toll the removal s ta tu te 's time limit."); Bouza v. Ford Motor Co., No. 07-22728-CIV, 2007 WL 4232697, a t *1 (S.D. Fla. November 28, 2007) (recognizing that when a nondiverse party is joined in a lawsuit to defeat diversity and then dismissed from the lawsuit after the one year lim ita tio n has expired, "equity might require that the § 1446(b) limit be extended"). However, other district courts, including this one, have reasoned that equitable tolling of

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§ 1446's time bar is not permitted under any circumstances in the Eleventh Circuit. Barnett v. Sylacauga Autoplex, 973 F. Supp. 1358, 1362 (N.D. Ala 1997) (holding that la n g u a g e in the United States Supreme Court case Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1 9 9 6 ), the legislative history of amendments made to § 1446, and the Eleventh Circuit's la n g u a g e in Burns v. Windsor Ins. Co., 31 F.3d 1092 (11th Cir. 1994) all indicate that "an a tte m p t to gain access to the federal courts in a diversity action one year after the filing of a suit . . . is blocked"); Jones, 2008 WL 4600999, at *2; Russaw v. Voyager Life Ins. Co., 9 2 1 F. Supp. 723, 724­25 (M.D. Ala. 1996) (Thompson, J.) (holding that, even in cases o f fraudulent joinder, § 1446 does not provide for an exception to the one year limitation o n removing diversity cases). III. DISCUSSION T h is suit was commenced on July 15, 2009, the date on which the Jacksons filed th e ir complaint in the Circuit Court of Russell County. (Doc. # 1). Litton Loan's second N o tic e of Removal was filed September 24, 2010, fourteen months after the suit was c o m m e n c e d . (Doc. # 1). As discussed above, § 1446(b) prohibits Litton Loan from re m o v in g this case more than one year after its commencement, as removal in this case w o u ld be premised on diversity jurisdiction. This Court has previously held that there are n o equitable tolling doctrines applicable to the time bar set out in § 1446.2 Jones, 2008

While several cited cases indicate the existence of an equitable tolling doctrine a p p lic a b le to the removal statutes, each of these apply to situations in which parties have trie d to circumvent removal jurisdiction through fraudulent joinder. Fraudulent joinder is 5

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WL 4600999, at *2; Russaw, 921 F. Supp. at 724­25. In keeping with its past decisions, th is Court finds that there is no applicable tolling doctrine by which Litton Loan can e s c a p e the statute's one year limitation for removal of diversity cases. Because Litton L o a n 's notice of removal is time barred, it is due to be DENIED. For the foregoing reasons, it is hereby ORDERED that: 1 . The Jacksons's Motion to Remand (Doc. # 11) is GRANTED. 2. This case is REMANDED to the Circuit Court of Russell County, Alabama. 3. The Clerk is DIRECTED to take appropriate steps to effect the remand. 4. All motions other than the Motion to Remand decided herein are left for re s o lu tio n by the Circuit Court of Russell County. Done this the 29 day of November, 2010.
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/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

n o t the issue here. Therefore, even if such equitable tolling doctrines did exist in the E le v e n th Circuit, they would not apply in this case. 6