The Estate of Betty Langford Wright v. Nationstar Mortgage, LLC

Filing 12

MEMORANDUM AND ORDER: Plaintiff's 9 Motion to Remand is DENIED as further set out in the memorandum and order. Signed by Honorable Judge Nicholas G. Garaufis on 2/22/2017. (dmn, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA

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THE ESTATE OF BETTY LANGFORD WRIGHT,
Plaintiff,

MEMORANDUM & ORDER
3:16-CV-735 (NGG) (CSC)

-against-

NATIONSTAR MORTGAGE, LLC,
Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.'
On September 7, 2016, Defendant Nationstar Mortgage, LLC, removed this action to the
Middle District of Alabama. (Not. of Removal (Dkt. 1).) Before the court is a Motion to
Remand filed by Plaintiff, the Estate of Betty Langford Wright. (Pl.'s Mot. to Remand
("PL Mot.") (Dkt. 9).) For the reasons stated below, the Motion is DENIED.

I.

BACKGROUND
A. Plaintiff's Allegations in the State Complaint

Plaintiff commenced this action on December 17, 2015, by filing a summons and
complaint in the Circuit Court of Macon County, Alabama (together with the amendment
discussed below, the "State Complaint"). (State Comp!. (Dkt. 1-1).) The defendants named in
the complaint were Defendant Nationstar and six Fictitious Defendants "whose identities are not
presently known but who will be added by substitution upon their identification." (Id. if 8.)
Plaintiff alleged that at the time of Betty L. Wright's death, she was the sole surviving owner and
mmigagor of a residential propetiy located in Tuskegee, Alabama (the "Property"). (Id. ifi! 1-4.)

'The Honorable Nicholas G. Garaufis, .United States District Judge for the Eastern District of New York, sitting by
designation.

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The note underlying the mortgage (the "Loan") was issued by a third party in the principal
amount of$63,400, and was reassigned to Defendant in July 2015. (Id.,, 1, 3.) Plaintiff
alleged that Defendant "wrongfully took possession of the Property in November of2015," and
that the six Fictitious Defendants "aided" Defendant in the "wrongful conduct of installing the
locks on the improvements located on the Property." (Id., 8.)
B. Plaintiff's Causes of Action

Plaintiff sought "injunctive relief to stop [Defendant] Nationstar from foreclosing on the
Mortgage and ordering Nationstar to provide Plaintiff with a fully detailed history of the balance
of the subject loan, payments thereon," "cost and charges" that have accrued, and the "running
balance." (State Comp!. , 10.) Plaintiff also asserted claims for nuisance, trespass, and
conversion against Nationstar and the six Fictitious Defendants. (Id., 12.) Plaintiff requested
"damages," but did not specify an amount. (Id.) On March 9, 2016, Plaintiff amended the State
Complaint to add a claim against Nationstar for waste, once again requesting unquantified
"damages."· (Am. to State Comp!. (Dkt. 1-2).)
C. The Settlement Offers

On September 1, 2016, Plaintiff wrote an email to Defendant offering to settle the case if
the Defendant would "waive the debt" owed on the Loan and "pay [Plaintiff! $250,000"
(the "Settlement Offer"). (Not. of Removal at 2; see also Sept. 1, 2016, Email from Pl.'s
Counsel (Dkt. 1-8 at ECF p.2).) Plaintiff repeated the same Settlement Offer in an email the next
day. (See Sept. 2, 2016, Email from Pl.'s Counsel (Dkt. 1-8 at ECF p.3).)
D. Removal and Plaintiff's Motion to Remand

On September 7, 2016, Defendant removed the action to the Middle District of Alabama
on the basis of diversity jurisdiction. (Not. of Removal.) Plaintiff moved to remand on
October 6, 2016. (Pl. Mot.)
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II.

LEGAL STANDARDS
A. Removal
"A party seeking to remove a case to federal court bears the burden of establishing

federal jurisdiction." McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1241 (11th Cir.
2013) (quoting Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th Cir. 2006)). District
coutis must '"strictly construe the right to remove' and apply a general 'presU!Uption against the
exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be
resolved in favor of remand."' Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013)
(alteration omitted) (quoting Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050
(11th Cir. 2001)).
In general, a defendant may only file a notice of removal within 30 days of receiving "the
initial pleading setting fo1ih the claim for relief." 28 U.S.C. § 1446(b)(l). There is an exception,
however, for situations where "the case stated by the initial pleading is not removable," but the
defendant later receives "an amended pleading, motion, order or other paper" that establishes a
basis for federal jurisdiction. Id. § 1446(b)(3). Under those circumstances, the defendant is
afforded a new 30-day period in which to remove the case. Id.

B. Federal Diversity Jurisdiction
Federal courts have original jurisdiction over cases in which the parties have diversity of
citizenship and the amount in controversy exceeds $75,000, exclusive of interest and costs.
28 U.S.C. § 1332(a). When a defendant seeks to remove based on diversity jurisdiction, courts
"[t]ypically ... look to the complaint to establish the amount in controversy." McGee, 719 F.3d
at 1241. Even ifthe initial pleading does not appear to satisfy the amount in controversy, the
defendant nonetheless has two possible paths into federal court.

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First, if the initial pleading seeks "nonmonetary relief'---0r seeks a "money judgment,
but the State practice either does not permit demand for a specific sum or pe1mits recovery of
damages in excess of the amount demanded"-the defendant's "notice ofremoval may assert the
amount in controversy." 28 U.S.C. § 1446(c)(2)(A). "In this scenario, 'the removing defendant
must prove by a preponderance of the evidence that the amount in controversy exceeds the
jurisdictional requirement."' McGee, 719 F.3d at 1241 (quoting Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir. 2001)).
The second path relies on Section 1446(b)(3), as described above. If"an amended
pleading, motion, order or other paper" establishes, for the first time, that the amount in
controversy exceeds the $75,000 statutory threshold in a case with diversity of citizenship, a
defendant may remove the case during the renewed 30-day removal window. 28 U.S.C.
§ 1446(b)(3).

III.

DISCUSSION
Defendant removed this action more than eight months after Plaintiff filed the State

Complaint. Therefore, removal was untimely unless the Settlement Offer created a new 3 0-day
window of removability under Section 1446(b)(3). As the removing party, Defendant bears the
burden of showing, by a preponderance of the evidence, that (1) "the case stated by the initial
pleading [was] not removable," and (2) the Settlement Offer constituted "paper from which it
may first be ascertained that the case" was removable. 28 U.S.C. § 1446(b)(3).
With regard to the first prong, Plaintiff argues that removal was untimely because the
"removal request [was filed] more than 30 days past the date Defendant knew or should have
known" that the amount in controversy exceeded $75,000. (Pl. Mot. at 3.) With regard to the
second prong, Plaintiff argues that the court lacks original jurisdiction because the Fictitious
Defendants vitiate complete diversity. The court finds that both arguments are foreclosed by
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clear legal authority, and further, that Defendant's Notice of Removal was sufficient to establish
federal jurisdiction. Accordingly, the Motion to Remand is denied.

A. Removability Based on the Initial Pleading
Plaintiff argues that, though no damage amount was specified in the State Complaint,
Defendant could reasonably have deduced that the amount in controversy exceeded $75,000
based on the value of the Property and value of the Loan. Plaintiffs argument appears to rely on
Defendant's ability to "assert" an amount in controversy under certain circumstances ifthe initial
pleading is silent. See 28 U.S.C. § 1446(c)(2)(A). Plaintiff alleges, first, that "the value of the
[Property] is in excess of $75,000." (Pl. Mot. 'If 6.) Defendant "is believed to have an appraisal
for part of the real estate"-the portion of the Property at issue in the conversion and waste
claims-and that partial appraisal alone "is believed to exceed $75,000." (Id.

'If 5.) With regard

to the Loan, Plaintiff noted that the outstanding balance was $67,478.76 as of December 2015.
(Id. 'If 5.a; see also Dec. 22, 2015, Payoff Statement (Dkt. 9 at ECF p.5).) The full loan balance
"is believed to exceed $75,000 when late charges, counsel fees, interest, etc. are included." (Pl.
Mot. 'If 5.a.)
Even if Plaintiff is correct about these alleged values, however, this argument fails
because the State Complaint did not place the full value of the Property or the Loan at issue. A
defendant seeking to assert an amount in controversy for the purposes of diversity jurisdiction
"can take into account damages and any equitable relief the plaintiff seeks, as long as the
estimate is not overly speculative." Porter v. MetroPCS Commc'ns Inc., 592 F. App'x 780, 783
(!Ith Cir. 2014) (summary order) (citing Leonard v. Enter. Rent a Car, 279 F.3d 967, 973
(11th Cir. 2002)). The State Complaint sought monetary damages on its tort and waste claims,
as well as an injunction delaying foreclosure and ordering an accounting on the Loan. Plaintiff
did not, however, assert an unencumbered right of ownership to the Property. Plaintiff did not
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seek to permanently enjoin foreclosure or to reduce or cancel its debt under the Loan. (See State
Comp!. ~ 5 ("Plaintiff, is ready, willing and able to pay the subject debt and prevent foreclosure
on the Property.").) Therefore, Defendant would not have been able to assert an amount in
controversy based on the value of the Property or the value of the Loan. See, e.g., White v.
Wells Fargo Home Mortg., No. l l-CV-408 (MHT), 2011 WL 3666613, at *3 (M.D. Ala.
Aug. 22, 2011) ("[N]either the total value of the property, nor [plaintiffs] cmTent debt,
represents the amount in controversy because [plaintiff] does not challenge the validity of the
mortgage or seek an injunction prohibiting foreclosure." (citing James v. U.S. Bank Nat'! Ass'n,
2009 WL 2170045, at *2 (M.D. Ala. July 17, 2009))); Brown v. Ocwen Loan Servicing, LLC,
798 F. Supp. 2d 1288, 1290 (M.D. Ala. 2011) (An injunction delaying foreclosure "is worth
much less than the [total] value of the property" for the purpose of satisfying the amount in
controversy, "and the court cannot simply rely on the value of the mortgage or the property to
determine that amount." (citations omitted)).
Plaintiff has not alleged that its causes of action put into controversy a combined total of
at least $75,000, and Defendant is not permitted to speculate as to the amount in controversy
without some objective basis. Simpson v. Primerica Life Ins., Co., No. 2:16-CV-331 (WKW),
2016 WL 3647336, at *l (M.D. Ala. July 7, 2016) ("If the evidence does not unambiguously
establish the amount in controversy, 'neither the defendants nor the comt may speculate in any
attempt to make up for the notice's failings."' (quoting Lowery v. Alabama Power Co.,
483 F.3d 1184, 1214-15 (11th Cir. 2007))). Neither the value of the Property nor the value of the
Loan was properly at issue in the case before the Settlement Offer. Therefore, the court finds
that Defendant has canied its burden of showing that the action was not removable based on the
initial pleading.

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B. Removability Based on the Settlement Offer
Defendant bears the burden of showing that the Settlement Offer established federal
jurisdiction. The court finds that the Settlement Offer provided an evidentiary basis for the
"amount in controversy" requirement, and further finds that the parties have complete diversity
of citizenship. Federal diversity jurisdiction therefore exists in this case, and the court finds that
removal was proper. 28 U.S.C. §§ 1332(a), 1443(b)(3).
1.

Amount in Controversy

Section 1446(b)(3) permits removal after the initial 30-day window has closed if"an
amended pleading, motion, order or other paper" newly establishes a basis for federal
jurisdiction. Defendant contends-and Plaintiff does not contest-that the emailed Settlement
Offer qualifies as "other paper" within the meaning of the statute. (Not. of Removal at 5-6.) See
also Lee v. Lilly Trucking of Virginia, Inc., No. 2:12-CV-74 (MEF), 2012 WL 960989, at *2
(M.D. Ala. Mar. 21, 2012) ("Demand letters, settlement offers, and even emails estimating
damages may constitute 'other paper."' (citing Lowery, 483 F.3d at 1212 n.62)). 1
The Settlement Offer requested a $250,000 payment plus waiver of the Loan, which, at
the time of removal, had a balance of$70,555.56. (Not. of Removal at 5; see also Debt
Validation Figures (Dkt. 1-9).) Thus, the Settlement Offer had a total value of $320,555.56, well
in excess of the statutory $75,000 threshold for the amount in controversy. 28 U.S.C. § 1332(a);
see also Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010) ("A court's
analysis of the amount-in-controversy requirement focuses on how much is in controversy at the
time of removal." (citations omitted)). The court finds that the Settlement Offer permitted

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In the September 1, 2016, email, Plaintiffs counsel referenced a 41prior verbal offer to resolve the matter."
(Sept. 1, 2016, Email from Pl.'s Counsel (Dkt. 1-8 at ECF p.2).) "[T]his court has found that an oral settlement
demand by itself fails to meet the 'other paper' requirement," however. Simpson v. Primerica Life Ins .. Co.,
No. 2:16-CV-331(WKW),2016 WL 3647336, at *4 (M.D. Ala. July 7, 2016) (citation omitted). The relevant
communication under Section 1446(b)(3) was the first written settlement offer.

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Defendant to remove the action under Section 1446(b)(3 ), assuming the case had diversity of
citizenship.
2.

Diversity of Citizenship

To qualify for diversity jurisdiction, an action must exhibit "complete diversity,"
meaning that "every plaintiff must be diverse from every defendant." Rivas v. The Bank ofN.Y.
Mellon, -F. App'x-, No. 15-15324, 2017 WL 242545, at *3 (11th Cir. Jan. 20, 2017)
(summary order) (quoting Flintlock Constr. Servs., LLC v. Well-Come Holdings, LLC,
710 F.3d 1221, 1224 (11th Cir. 2013)). Defendant asserts that the Estate of Betty L. Wright is an
Alabama citizen because Ms. Wright herself was an Alabama citizen. (Not. of Removal at 3.)
See also 28 U.S.C. § 1332(c)(2) ("[T]he legal representative of the estate ofa decedent shall be
deemed to be a citizen only of the same State as the decedent."). Defendant, meanwhile, is a
foreign limited liability company with citizenship in the states of Delaware and Texas. See
Rivas, 2017 WL 242545, at *3 ("A limited partnership is a citizen of each state in which any of
its partners, limited or general, are citizens." (quoting Rolling Greens MHP, L.P. v. Comcast
SCH Holdings L.L.C., 374 F.3d 1020, 1021 (11th Cir. 2004) (alteration omitted))). (See Not. of
Removal at 3 (Defendant's membership consists of two entities, both of which hold citizenship
in Delaware and Texas.).)
Plaintiff challenges complete diversity by pointing to the six Fictitious Defendants named
in the State Complaint. Plaintiff "has yet to determine or establish who said paiiies are," but
Plaintiff "anticipate[s] that such parties are Alabama residents" and plans to add them "upon
identification." (PL Mot.

'if 8.) This argument is foreclosed by clear statutmy text: for diversity

purposes, "the citizenship of defendants sued under fictitious names shall be disregarded."
28 U.S.C. § 1441(b); see also Walker v. CSX Transp. Inc., 650 F.3d 1392, 1395 n.11 (11th Cir.
2011) ("[T]hat the fictitious defendants were likely Georgia citizens did not destroy complete
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diversity because [Section 1441] requires that fictitious 'named' parties be disregarded for
purposes of diversity jurisdiction."). The court finds that complete diversity existed at the time
of removal. Therefore, in light of the above analysis regarding the amount in controversy, the
court finds that this action was properly removed under Section 1446(b)(3).

IV.

CONCLUSION
For the reasons stated above, Plaintiffs Motion to Remand (Dkt. 9) is DENIED.
SO ORDERED.

~7~~k

Dated: Brooklyn, New York
February .;l;;!.2017

NICHOLAS G. GARAUFIS
United States District Judge

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