Clapick et al v. First National Bank of Arizona et al
Filing
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ORDER granting 10 Motion to Remand and remanding this action to the Superior Court of Arizona in Maricopa County for lack of federal subject matter jurisdiction. Signed by Judge Frederick J Martone on 6/20/12. (Attachments: # 1 Copy of Remand Letter)(LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Plaintiffs,
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vs.
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First National Bank of Arizona; Bank of)
New York Mellon; Bank of America N.A.;)
Mortgage Electronic Registration Systems)
Incorporated; ReconTrust Company N.A.;)
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John Does,
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Defendants.
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Bari E. Clapick; Kuma & Cash, LLC,
No. CV 12-00666-PHX-FJM
ORDER
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We have before us plaintiffs' motion to remand (doc. 10), plaintiff's notice of errata
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(doc. 15), defendants' response (doc. 16), and plaintiffs' reply (doc. 18). Plaintiffs filed this
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action in the Superior Court of Arizona in Maricopa County on February 21, 2012. Their
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amended special action complaint asserts claims for violation of A.R.S. § 33-420, violation
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of the Arizona Consumer Fraud Act, and quiet title. Defendants The Bank of New York
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Mellon Corporation, Bank of America, N.A., ReconTrust Company, N.A., and Mortgage
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Electronic Registration Systems, Inc. removed on the basis of diversity on March 28, 2012.
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Plaintiff Clapick purchased a house in Scottsdale, Arizona in August 2004. She
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financed the purchase with a loan for $520,800 from the First National Bank of Arizona
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("FNBA"). FNBA was one of three banks owned by First National Bank Holding Company.
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FNBA was merged into a sister bank, First National Bank of Nevada ("FNBN"), on June 30,
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2008. FNBN was soon closed and its assets sold to Mutual of Omaha Bank ("MOB"), a
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federal savings association.
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"[R]emoval statutes are strictly construed against removal." Libhart v. Santa Monica
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Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). "Federal jurisdiction must be rejected if
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there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980
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F.2d 564, 566 (9th Cir. 1992). When a case has been removed to federal court under 28
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U.S.C. § 1441 on the basis of diversity, "the proponent of federal jurisdiction – typically the
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defendant in the substantive dispute – has the burden to prove, by a preponderance of the
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evidence, that removal is proper." Geographic Expeditions, Inc. v. Estate of Lhotka ex rel.
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Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010). Defendants purport to base jurisdiction on
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diversity of citizenship.
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Plaintiffs claim that an unserved defendant, FNBA, destroys diversity because it was
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an Arizona citizen and its successor MOB is a national citizen. Defendants contend that
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FNBN was a citizen of Nevada and, because it acquired FNBA before being closed and
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placed into a receivership, the last state of citizenship of FNBA was Nevada. Defendants fail
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to discuss the effect of MOB's acquisition of FNBN's assets. MOB, a federally chartered
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savings association, was the successor to FNBA before plaintiffs filed their complaint and
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apparently continues to be FNBA's successor. "In determining whether a Federal court has
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diversity jurisdiction over a case in which a Federal savings association is a party, the Federal
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savings association shall be considered to be a citizen only of the State in which such savings
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association has its home office." 12 U.S.C. § 1461(x). Defendants have made no allegations
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regarding the state of MOB's citizenship in general or home office under this statute.
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In addition, one of the plaintiffs is a limited liability company ("LLC"). An LLC "is
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a citizen of every state of which its owners/members are citizens." Johnson v. Columbia
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Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). The parties fail to discuss the
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citizenship of the members of plaintiff Kuma & Cash, LLC. Defendants have not overcome
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the "strong presumption" against federal jurisdiction and have not met their burden of
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proving that removal was proper.
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IT IS ORDERED GRANTING plaintiff's motion to remand and remanding this
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action to the Superior Court of Arizona in Maricopa County for lack of federal subject matter
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jurisdiction. (Doc. 10).
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DATED this 20th day of June, 2012.
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