Allen et al v. U.S. Bank NA ND

Filing 26

ORDER DENYING plaintiffs' motion to remand (doc. 6). IT IS FURTHER ORDERED GRANTING defendant's motion to dismiss with prejudice (doc. 9) and DENYING AS MOOT defendant's motion to strike improper reply (doc. 22). Signed by Judge Frederick J Martone on 8/9/2011.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiffs, ) ) vs. ) ) U.S. Bank National Association ND, a) ) national banking association, ) ) Defendant. ) ) Horace D. Allen and Toya S. Allen, No. CV 11-00922-PHX-FJM ORDER 16 17 The court has before it plaintiffs' motion to remand (doc. 6) and defendant's response 18 (doc. 11). Plaintiffs did not file a reply. The court also has before it defendant's motion to 19 dismiss (doc. 9), plaintiffs' response (docs. 11 and 13), and defendant's reply (doc. 16). We 20 also have before us plaintiffs' sur-reply (doc. 18), defendant's motion to strike improper reply 21 (doc. 22), and plaintiff's response (doc. 23). 22 Plaintiff filed this action alleging wrongful prosecution in the Superior Court of 23 Arizona in Maricopa County on April 15, 2011. Defendant timely removed the case here on 24 May 9, 2011. Defendant claims that diversity jurisdiction exists because plaintiffs are 25 citizens of Arizona and defendant is a citizen of North Dakota because it is a national 26 banking association and its main office is located in North Dakota. In addition, the amount 27 in controversy requirement is met because plaintiffs' complaint seeks stated sums of 28 1 $1,294,516.28 and $60,000.00. 28 U.S.C. § 1332(A). 2 Plaintiffs now move to remand the case. Plaintiffs argue that removal was improper 3 because defendant has a prominent and substantial presence in Arizona and therefore is a 4 citizen of Arizona. Plaintiffs also contend that removal will "take the Plaintiffs out of their 5 comfort zone and further burden an already overloaded federal district court venue." MTR 6 ¶ 16. Defendant is a national bank. The law is clear that a bank's location for diversity 7 jurisdiction purposes is the state in which the national bank's main office is located. 8 Wachovia Bank v. Schmidt, 546 U.S. 303, 126 S.Ct. 941 (2006) (interpreting 28 U.S.C. § 9 1348). Here, defendant's main office is located in Fargo, North Dakota. Therefore, it is a 10 citizen of North Dakota for diversity jurisdiction purposes. Because plaintiffs are citizens 11 of Arizona, removal on the basis of diversity jurisdiction is proper. We reject plaintiffs' 12 argument that litigation in the federal court system will take them out of their comfort zone. 13 That is not a proper basis to remand a case. We deny plaintiffs' motion to remand. 14 Having found that removal was proper and we have jurisdiction, we address 15 defendant's motion to dismiss. Defendant moves to dismiss plaintiffs' complaint pursuant to 16 Rule 12(b)(6) because it is barred by the statute of limitations and by a previous dismissal 17 of the claim. Plaintiffs only respond directly to the statute of limitations defense. The rest 18 of the response and unauthorized sur-reply, simply rambles about the state court action. 19 Plaintiffs argue that the cause of action did not accrue when the Superior Court dismissed the 20 case because they appealed the decision. They contend that the Arizona Court of Appeals 21 did not decide the malicious prosecution claim, and therefore their claim is timely. 22 A motion to dismiss based on statute of limitations grounds may be granted only if 23 "the running of the statute is apparent on the face of the complaint.” Jablon v. Dean Witter 24 & Co., 614 F.2d 677, 682 (9th Cir. 1980). A claim for malicious prosecution is subject to 25 a one year statute of limitations. A.R.S. § 12-541(1). A claim for malicious prosecution 26 accrues when the prior proceedings have terminated in the party's favor. Glaze v. Larsen, 27 207 Ariz. 26, 29, 83 P.3d 26, 29 (2004). Here plaintiffs raised a claim for malicious 28 prosecution in the initial action. The Superior Court of Arizona dismissed the claim against -2- 1 Ms. Allen on March 25, 2010. Complaint ¶ 17, ex. 8. This is clear from the complaint. The 2 present action was filed on April 15, 2011. Thus this action, having been filed more than a 3 year after the prior dismissal, is barred by the statute of limitations. Plaintiffs' citations to 4 Hansen v. Stoll, 130 Ariz. 454, 636 P.2d 1236 (Ct. App. 1981) and Owen v. Shores, 24 5 Ariz.App. 250, 537 P.2d 978 (Ct. App. 1975) do not instruct otherwise. 6 Equitable tolling may be applied to a statute of limitations defense. Plaintiffs, 7 however, do not request equitable tolling, nor is there anything in the record that suggests it 8 would be appropriate. Accordingly, we grant defendant's motion to dismiss because this 9 action is barred by the statute of limitations. We also note that if defendant seeks an award 10 of attorneys' fees, it must do so in a separate motion. See LRCiv. 54.2. 11 IT IS THEREFORE ORDERED DENYING plaintiffs' motion to remand (doc. 6). 12 IT IS FURTHER ORDERED GRANTING defendant's motion to dismiss with 13 prejudice (doc. 9) and DENYING AS MOOT defendant's motion to strike improper reply 14 (doc. 22). 15 DATED this 9th day of August, 2011. 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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