Federal Home Loan Mortgage Corporation v. Burke et al

Filing 12

ORDER GRANTING 6 MOTION TO REMAND and REMANDING CASE TO STATE COURT. Signed by Honorable Jimm Larry Hendren on June 29, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
FEDERAL HOME LOAN MORTGAGE
CORPORATION
v.

PLAINTIFF

Civil No. 11-5093

JAMIE D. BURKE; VERA LYNN BURKE;
and OCCUPANTS OF 2517 ORLEANS,
ROGERS, ARKANSAS 72756

DEFENDANTS

O R D E R
Now

on

this

29th

day

of

June,

2011,

comes

on

for

consideration the Motion To Remand (document #6) of defendants
Jamie D. Burke and Veralynn Burke (the "Burkes"), to which no
response has been filed, and from said motion, and the pleadings
on file, the Court finds and orders as follows:
1.

This action originated in the Circuit Court of Benton

County, Arkansas, with the filing of a Complaint In Forcible Entry
And Detainer on February 25, 2011.
2.

`On April 13, 2011, a Notice Of Removal was filed by

Michelle Tull Brown ("Brown), whom the Court understands to be the
defendant designated in the Complaint as "Occupants of 2517
Orleans, Rogers, Arkansas 72756."
In the Notice Of Removal, Brown averred that she was the only
person thus far served with process, and that this matter involves
"diversity of the parties and an amount in controversy exceeding
$100,000.00."

In signing the Notice Of Removal, Tull gave an

address in Rogers, Arkansas.

3.

The Burkes state that they did not join in the Notice Of

Removal filed by Brown, and cite Marano Enterprises of Kansas v.
Z-Teca Restaurants, L.P., 254 F.3d 753,

755 n. 2 (8th Cir. 2001)

for the rule that "ordinarily all defendants must join in a notice
of removal or the case will be remanded").
Although the record brought up from State court contains a
Return and Affidavit of Service showing service of process on each
of the Burkes on March 14, 2011, Brown contends that these
Affidavits are "wholly and materially untrue," and that the Burkes
have not been served.
4.

The Court need not determine whether the Affidavits are

accurate, because the Burkes offer an alternative basis for
remand.

They point out that Brown holds herself out to be a

resident of Arkansas, and that the matter was removed on the basis
of diversity. They cite 28 U.S.C. § 1441(b), which allows removal
of diversity cases only if none of the defendants "properly joined
and served" is a citizen of the State in which the action is
filed.
Brown has not responded with any denial of her Arkansas
citizenship, and the Court finds that this asserted basis for
remand has merit.

The Motion To Remand will, therefore, be

granted.
IT IS THEREFORE ORDERED that the Motion To Remand (document
#6) of defendants Jamie D. Burke and Veralynn Burke is granted,
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and the Clerk of Court is directed to remand this matter to the
Circuit Court of Benton County, Arkansas.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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