Paulhus, et al v. Fay Servicing LLC, et al

Filing 27

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 5/1/14 ORDERING that Plaintiffs' MOTION to REMAND 9 is DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT PAULHUS and LYNETTE
PAULHUS,

CIV. NO. 2:14-736 WBS AC
MEMORANDUM AND ORDER RE: MOTION
TO REMAND

Plaintiffs,

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v.
FAY SERVICING, LLC; CALIBER
HOME LOANS, INC., formerly
known as VERICREST FINANCIAL,
INC.; SUMMIT MANAGEMENT
COMPANY, LLC; and DOES 1
through 20, inclusive,
Defendants.

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Plaintiffs Scott Paulhus and Lynette Paulhus brought

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this action against defendants Fay Servicing, LLC, Caliber Home

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Loans, Inc., formerly known as Vericrest Financial, Inc., and

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Summit Management Company, LLC, arising out of the foreclosure of

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plaintiffs’ home.

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County Superior Court, defendants removed to federal court on the

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basis of diversity jurisdiction.

After plaintiffs filed this action in Placer

(Docket No. 1.)
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Plaintiffs

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contend that removal was improper and move to remand the action

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to Placer County Superior Court pursuant to 28 U.S.C. § 1447.1

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Federal courts have original jurisdiction over civil

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actions between citizens of different states in which the amount

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in controversy exceeds $75,000, exclusive of interest and costs.

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28 U.S.C. § 1332.

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brought in a State court of which the district courts of the

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United States have original jurisdiction may be removed by the

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defendant or defendants to federal district court.”

Under 28 U.S.C. § 1441, “civil action[s]

Abrego

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Abrego v. Dow Chem. Co., 443 F.3d 676, 679-80 (9th Cir. 2006)

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(alteration in original) (citations and internal quotation marks

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omitted).

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removal must occur within one year of the commencement of the

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action.”

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298 F.3d 756, 762 (9th Cir. 2002)).

“In addition, all defendants must agree to removal and

Id. (citing United Computer Sys., Inc. v. AT&T Corp.,

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Plaintiffs do not dispute that they are citizens of

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California and are therefore diverse from defendants, who are

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business entities incorporated under Delaware law and whose

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principal places of business are outside of California.

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Not. of Removal ¶ 4.)

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represents that each defendant consents to removal, (id. ¶ 6),

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and thereby satisfies the unanimity requirement.

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Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009)

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(“One defendant’s timely removal notice containing an averment of

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the other defendants’ consent and signed by an attorney of record

(See

Defendants’ Notice of Removal also

See Proctor v.

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Because oral argument will not be of material
assistance, the court orders this matter submitted on the briefs.
E.D. Cal. L.R. 230(g).
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is sufficient.”).

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Plaintiffs contend that removal was nonetheless

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improper because the amount in controversy does not exceed

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$75,000.

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it is well established that the amount in controversy is measured

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by the object of the litigation.”

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F.3d 837, 840 (9th Cir. 2002) (quoting Hunt v. Wash. State Apple

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Advertising Comm’n, 432 U.S. 333, 347 (1977)).

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arising out of the foreclosure of a plaintiff’s home, the amount

“In actions seeking declaratory or injunctive relief,

Cohn v. Petsmart, Inc., 281

In actions

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in controversy may be established by the value of the property,

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see, e.g., Chapman v. Deutsche Bank Nat’l Trust Co., 651 F.3d

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1039, 1045 n.2 (9th Cir. 2011) (“[T]he object in litigation is

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the Property, which was assessed at a value of more than

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$200,000, and therefore satisfies the amount-in-controversy

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requirement.”), or by the value of the loan, see, e.g., Ngoc

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Nguyen v. Wells Fargo Bank, N.A., 749 F. Supp. 2d 1022, 1028

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(N.D. Cal. 2010) (“Numerous courts have held that, where a

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complaint seeks to invalidate a loan secured by a deed of trust,

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the amount in controversy is the loan amount.”).

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Here, the Deed of Trust indicates that plaintiffs

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borrowed $850,000 against their home, which far exceeds the

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$75,000 required for diversity jurisdiction.

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(Docket No. 1-1).)

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suggesting that the amount in controversy is below $75,000.

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Instead, plaintiffs insist, without citation, that “[i]f an in-

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state plaintiff wishes to remain in state court, all it needs to

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do is to refrain from alleging any particular sum in its prayer

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for relief.”

(See Compl. Ex. A

Plaintiffs do not offer any evidence

(Pls.’ Mem. at 4:18-19 (Docket No. 9).)
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Not so.

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Even if a plaintiff declines to allege a particular amount in

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controversy, removal is appropriate where a defendant can show by

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a preponderance of the evidence, as defendants have done here,

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that the amount in controversy exceeds $75,000.

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Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996).

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even if plaintiffs might have been able to defeat jurisdiction

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from the outset by stating that they would seek to recover no

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more than $75,000, it is black-letter law that plaintiffs cannot

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do so now that jurisdiction has attached.

See Sanchez v.
And

See St. Paul Mercury

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Ins. Co v. Red Cab Co., 303 U.S. 283, 292 (1938) (holding that

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when “the plaintiff after removal, by stipulation, by affidavit,

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or by amendment of his pleadings, reduces the claim below the

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requisite amount, this does not deprive the district court of

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jurisdiction”).

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plaintiffs’ motion to remand as frivolous.

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For the foregoing reasons, the court views

IT IS THEREFORE ORDERED that plaintiffs’ motion to

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remand be, and the same hereby is, DENIED.

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Dated:

May 1, 2014

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