Breslow et al v. Recontrust Company, N.A. et al
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
ALAN L. BRESLOW and
LINDA L. SHAFFER
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
O R D E R
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:
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."
The case was removed to this Court on November 29, 2011,
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.
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.
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
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).
jurisdiction, and face the task of establishing the jurisdictional
minimum in the face of a complaint that alleges no specific amount
of damages, and plaintiffs who clearly prefer to litigate in state
Defendants argue that "the amount in controversy is known to
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."
(quotation marks and citation omitted).
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
For these reasons, it will grant the Motion To
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
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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