Luellen v. Wells Fargo Bank, a National Association

Filing 21

ORDER signed by Judge Kimberly J. Mueller on 11/24/2012. This action is REMANDED to Sacramento County Superior Court. Defendant's Motions to 11 to Dismiss and 12 to Strike are DENIED as MOOT. This case is CLOSED. [cc: Sacramento Superior Court] (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LADANA LUELLEN,

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Plaintiff,

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No. CIV S-12-1121 KJM CKD

v.

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WELLS FARGO BANK,

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ORDER

Defendants.
______________________________/

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Plaintiff filed her complaint in Sacramento County Superior Court on April 2,

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2012, alleging four causes of action for violation of California state and common law. (Not. of

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Removal, ECF 1.) Defendant removed the action to this court on April 26, 2012 citing diversity

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as the court’s basis for jurisdiction. (Id.) Defendant contends it is a citizen of only South

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Dakota, the state where its main office is located. (Id. at 3.)

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Lack of subject matter jurisdiction may be challenged by either party or raised sua

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sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also Ruhrgas AG v.

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Marathon Oil Co., 526 U.S. 574, 583-84 (1983). “If at any time before final judgment it appears

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that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C.

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§ 1447(c). The federal removal statute, 28 U.S.C. § 1441(a), provides: “[A]ny civil action

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brought in a State court of which the district courts of the United States have original
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jurisdiction, may be removed by the defendant or the defendants, to the district court of the

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United States for the district and division embracing the place where such action is pending.”

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This court has original jurisdiction over cases in which the amount in controversy exceeds

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$75,000 and the parties are completely diverse. The Ninth Circuit “strictly construe[s] the

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removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

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1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat’l

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Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). “Federal jurisdiction must be rejected if there

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is any doubt as to the right of removal in the first instance.” Id. (citing Libhart v. Santa Monica

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Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). There is a “strong presumption” against

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removal jurisdiction, which “means that the defendant always has the burden of establishing that

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removal is proper.” Id.

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Plaintiff is a citizen of California. Plaintiff names fifty (50) Doe defendants.

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“The citizenship of fictitious defendants is disregarded for removal purposes . . . .” Soliman v.

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Philip Morris, Inc., 311 F.3d 966, 971 (9th Cir. 2002). Under 28 U.S.C. § 1348, national

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banking associations shall “be deemed citizens of the States in which they are respectively

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located.” Relying on Wachovia Bank v. Schmidt, 546 U.S. 303 (2006), defendant contends it is

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only “located” in South Dakota, where its main office is located. Whether a national bank is

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“located” in the state where it maintains its principal place of business is an issue that has led to

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splits both within the circuit and between circuits, which the Ninth Circuit has declined to

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address. See Peralta v. Countrywide Home Loans, Inc., 375 Fed. Appx. 784, 785 (9th Cir.

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2010). This court finds persuasive the reasoning of Taheny v. Wells Fargo Bank, N.A., which

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held that in light of Ninth Circuit case law, Wells Fargo is a citizen of California. See No. CIV.

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S-10-2123 LKK/EFB, 2012 U.S. Dist. LEXIS 47195 (E.D. Cal. Apr. 3, 2012) (confirming prior

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decision in Guinto v. Wells Fargo Bank, No. CIV S-11-372 LKK/GGH, 2011 U.S. Dist. LEXIS

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114986 (E.D. Cal. Oct. 5, 2011), and finding that in the Ninth Circuit a national bank is a citizen

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of the state where it maintains its principal place of business); see also Humburg v. Wells Fargo
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Bank, N.A., CIV No. S-12- 0999 KJM-CKD, 2012 U.S. Dist. LEXIS 123842, at *4 nn. 2 and 3

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(E.D. Cal. Aug. 30, 2012). As a result, complete diversity is absent and this court lacks

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jurisdiction.

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Accordingly, this action is hereby REMANDED to the Sacramento County

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Superior Court. Defendant’s motion to dismiss (ECF 11) and motion to strike (ECF 12) are

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denied as moot. This case is CLOSED.

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IT IS SO ORDERED.
DATED: November 24, 2012.

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UNITED STATES DISTRICT JUDGE

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