Henry et al v. Arizona Trust Deed Corporation et al

Filing 10

ORDER - IT IS ORDERED that by July 16, 2012, the removing Defendants shall file a supplement to the notice of removal properly alleging federal subject matter jurisdiction, or this case will be remanded for lack of federal subject matter jurisdiction. Signed by Judge James A Teilborg on 6/25/12. (LAD)

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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 Mischelle K. Henry and Eljay Scott, ) ) Plaintiffs, ) ) vs. ) ) ) Arizona Deed of Trust Corporation, et al.,) ) Defendants. ) ) ) ) No. CV 12-1055-PHX-JAT ORDER 16 “Inquiring whether the court has jurisdiction is a federal judge’s first duty in every 17 case.” Belleville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691, 693 (7th 18 Cir. 2003). In this case, the notice of removal fails to sufficiently plead jurisdiction. See 28 19 U.S.C. § 1332; Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192; - - - U.S. - - - (2010) 20 (discussing the citizenship of a corporation). Specifically, in this case the notice of removal 21 fails to allege the principal place of business of FNBC Properties, Inc. (which Defendants 22 claim Arizona Trust Deed Corporation merged into).1 23 24 25 26 27 28 1 The Court notes that Defendants claim Arizona Trust Deed Corporation/FNBC Properties, Inc., is fraudulently joined and that its citizenship should be disregarded. Defendants premise this argument on the theory that this company is the Trustee and that there is no cause of action against a Trustee under Arizona law. However, in Hogan v. Washington Mutual Bank, N.A., 2012 WL 1835540, ¶ 5 (Ariz. 2012), the Arizona Supreme Court stated that there is liability on a Trustee for breach of fiduciary duty in certain circumstances. On this record, the Court cannot conclude the Trustee was fraudulently joined. (This holding is without prejudice to the Trustee moving to dismiss on this or any 1 Accordingly, 2 IT IS ORDERED that by July 16, 2012, the removing Defendants shall file a 3 supplement to the notice of removal properly alleging federal subject matter jurisdiction, or 4 this case will be remanded for lack of federal subject matter jurisdiction. 5 DATED this 25th day of June, 2012. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 other basis.) -2-

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