Breslow et al v. Recontrust Company, N.A. et al

Filing 39

ORDER REMANDING CASE to the Circuit Court of Carroll County, Arkansas. Signed by Honorable Jimm Larry Hendren on March 6, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
ALAN L. BRESLOW and
LINDA L. SHAFFER

PLAINTIFFS

v.

Civil No. 11-3122

RECONTRUST COMPANY, N.A.,
ATTORNEY-IN-FACT FOR BAC
HOME LOANS SERVICING, L.P.
f/k/a COUNTRYWIDE HOME
LOANS SERVICING, L.P., and
BAC HOME LOANS SERVICING, L.P.
f/k/a COUNTRYWIDE HOME LOANS
SERVICING, L.P.

DEFENDANTS

O R D E R
Now

on

this

6th

day

of

March,

2012,

comes

on

for

consideration Plaintiffs' Motion To Remand Under 28 USC § 1447
(document #15), and from said motion, and the response thereto,
the Court finds and orders as follows:
1.

On October 11, 2011, plaintiffs filed this suit in the

Circuit Court of Carroll County, Arkansas, Western District,
alleging wrongful foreclosure in violation of various Arkansas
statutes and "Federal RICO Statutes."
2.
by

The case was removed to this Court on November 29, 2011,

"Recontrust

Company,

N.A.,

Attorney-In-Fact

for

Bank

of

America, N.A., successor by merger to BAC Home Loans Servicing,
L.P. F/K/A Countrywide Home Loans Servicing" ("Recontrust"), on
the basis of diversity.
Plaintiffs move to remand, contending that defendants have
not shown that there is complete diversity or that the amount in

controversy exceeds $75,000.
Neither

party

addresses

the

mention

of

"Federal

RICO

Statutes" in the Complaint, and the Court will not sua sponte
indulge in arguments that were not made by the parties for and
against remand on the basis of federal question jurisdiction.
5.

The general principles applicable to determining the

amount in controversy are laid out in Bell v. Hershey Co., 557
F.3d 953 (8th Cir. 2009):
The proponent of diversity jurisdiction has the
burden of proving that the amount in controversy exceeds
the jurisdictional amount. This is a straightforward
task in the usual matter because the plaintiff is master
of the complaint.
Thus, where the plaintiff is the
proponent of diversity jurisdiction, the amount in
controversy controls unless the defendant can establish
to a legal certainty that the claim is for less than the
jurisdictional minimum.
Where the defendant seeks to invoke federal
jurisdiction through removal, however, it bears the
burden of proving that the jurisdictional threshold is
satisfied. This can be a complex task where, as here,
the plaintiff prefers to litigate in state court. The
party seeking to remove in the non CAFA context in our
circuit has the burden to prove the requisite amount by
a preponderance of the evidence. This standard applies
regardless of whether the complaint alleges no specific
amount of damages or an amount under the jurisdictional
minimum. Once the removing party has established by a
preponderance of the evidence that the jurisdictional
minimum is satisfied, remand is only appropriate if the
plaintiff can establish to a legal certainty that the
claim is for less than the requisite amount.
557 F.3d at 956 (internal citations and quotation marks omitted).
6.

Defendants

here

are

the

proponents

of

diversity

jurisdiction, and face the task of establishing the jurisdictional
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minimum in the face of a complaint that alleges no specific amount
of damages, and plaintiffs who clearly prefer to litigate in state
court.
Defendants argue that "the amount in controversy is known to
be

over

$276,070.78

because,

in

addition

to

other

damages,

Plaintiffs are asking the Court to find that Defendants had no
enforceable interest in the real property that was sold at the
foreclosure sale for $276,070.78."

Plaintiffs respond -- and the

point is well taken -- that this argument fails to consider the
amount of the mortgage on the property.

The same documents that

indicate the sale price of the property indicate that money was
owed against it, albeit not how much.
The Complaint asks for liquidated damages; punitive damages;
and "emotional stress damages."

In support of remand, plaintiffs

state that although they seek liquidated damages, there is no
agreement as to such damages (document #32, page 5), and that
there is "no claim for compensatory damages, only liquidated ones"
(document #32, page 5-6).

These statements, which seriously

undermine plaintiffs' prospects for the recovery of any damages at
all, lessen the probability that the requisite jurisdictional
amount is in controversy.

Put another way, they increase the

level of doubt that the jurisdictional amount is in controversy.
It is axiomatic that "[a]ll doubts about federal jurisdiction
should be resolved in favor of remand to state court."

-3-

Knudson v.

Systems

Painters,

Inc.,

634

F.3d

968,

(quotation marks and citation omitted).

975

(8th

Cir.

2011)

Under the circumstances

here, the Court finds both that defendants have failed to prove
the requisite amount is in controversy by a preponderance of the
evidence, and that there is significant doubt that such amount is
in controversy.

For these reasons, it will grant the Motion To

Remand.
7.

There are many other motions pending in this case, but

because the Court has concluded that remand is appropriate, it
cannot and will not consider or resolve those motions, leaving
them to the court which has jurisdiction.
IT IS THEREFORE ORDERED that Plaintiffs' Motion To Remand
Under 28 USC § 1447 (document #15) is granted, and this matter is
remanded to the Circuit Court of Carroll County, Arkansas, Western
District.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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