Solberg v. NDEx West, LLC. et al

Filing 35

ORDER REMANDING CASE., ***Civil Case Terminated.. Signed by Judge ARMSTRONG on 3/30/11. (lrc, COURT STAFF) (Filed on 3/31/2011)

Solberg v. NDEx West, LLC. et al

Doc. 35

1 2 3 4 5 6 7 CHRISTOPHER J. SOLBERG, 8 9

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

Case No: C 10-4600 SBA ORDER REMANDING ACTION

Plaintiff, v. MORTGAGE; WELLS FARGO BANK,

10 NDEx West, L.L.C.; WACHOVIA 11 FSB; and DOES 1 through 20, inclusive, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants.

Plaintiff Christopher J. Solberg, acting pro se, brings the instant action against Defendants NDEx West, L.L.C. ("NDEx"), Wachovia Mortgage ("Wachovia"), and Wells Fargo Bank, FSB, alleging state law causes of action which arise from the foreclosure of real property located in Moraga, California. Defendant Wachovia, joined by NDEx, removed the action on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Because diversity jurisdiction appears to be lacking, the Court remands the action to state court. I. BACKGROUND
A. FACTUAL SUMMARY

In or about 2007, Leslie Lou Kish ("Kish"), who is not a party to this action, owned property located at 2135 Ascot Dr., #7, Moraga, California ("the Property"). First Am. Compl. ("FAC") ¶¶ 1, 8, Dkt. 9. Kish entered into a negative amortization mortgage with Wachovia, which was secured by a Deed of Trust. Id. ¶ 8. On April 9, 2007, Kish allegedly "signed a 2nd note and deed of trust ... in favor of Plaintiff." Id. ¶ 10.

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On May 9, 2010, Plaintiff began the foreclosure process by recording a Notice of Default against the Property. Id. According to Plaintiff, he acquired the property from Kish on August 30, 2010, through a trustee's sale. Id. On May 29, 2010, Defendants commenced separate foreclosure proceedings and recorded a Notice of Default on the Property. Id. ¶ 12. On August 31, 2010, Plaintiff received a copy of a Notice of Trustee's sale, which had been issued by NDEx. Id. ¶ 14. Plaintiff contacted NDEx and Wells Fargo Bank, FSB, which informed him that he had "no standing" to challenge the foreclosure. Id. ¶¶ 14-17. On September 27, 2010, Defendants foreclosed on the Property pursuant to the first Deed of Trust. Id. ¶ 25.
B. PROCEDURAL HISTORY

On September 13, 2010, Plaintiff commenced the instant action against Defendants NDEx, Wachovia and Wells Fargo Bank, FSB, in Contra Costa County Superior Court. The Complaint asserts four causes of action for: (1) Fraud; (2) Improper Procedures; (3) Bad Faith; and (4) Disputed Obligations ­ Misrepresentation. Plaintiff avers that NDEx is "headquartered and domiciled in Addison, Texas." Compl. ¶ 3, Dkt. 1-1. He does not allege the citizenship of Wachovia or Wells Fargo Bank, FSB, stating instead that their "form [was] unknown." Id. ¶¶ 4-6. On October 12, 2010, Wachovia, identifying itself as "a division of Wells Fargo Bank, N.A.," removed the action on the basis of diversity jurisdiction. Notice of Removal, Dkt. 1. While the Notice of Removal alleges that Wachovia is a citizen of South Dakota, and that NDEx is "a Delaware limited liability company headquartered in Addison, Texas," Notice of Removal ¶¶ 3-4, the citizenship of Wells Fargo Bank, FSB, is not alleged. Instead, the caption of the Notice of Removal purports to state that that Wachovia was "erroneously named as `Wells Fargo Bank, FSB.'" Id. at 1. NDEx separately filed a joinder in the removal. Dkt. 2. On October 19, 2010, Plaintiff filed a First Amended Complaint ("FAC"). Dkt. 8. The FAC names the same three Defendants as in the original Complaint, but includes

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additional factual allegations, adds a cause of action for breach of contract and omits the claim styled as Disputed Obligations ­ Misrepresentation. On January 18, 2011, Plaintiff filed a motion, ostensibly under Federal Rule of Civil Procedure 15(a) and 28 U.S.C. § 1447(e), to substitute "`Wells Fargo & Company' as a defendant in place of the erroneously named defendant, Wells Fargo Bank, FSB". Pl.'s Mot. at i. Plaintiff also seeks to join Wells Fargo Bank N.A., as a defendant. Id. Finally, Plaintiff seeks an order remanding the action to state court on the grounds that Wells Fargo Bank N.A., Wells Fargo & Company and Plaintiff are, for purposes of diversity jurisdiction, citizens of California. Id. II. DISCUSSION Before turning to the merits of Plaintiff's motion, the Court first examines whether the action was removable in the first instance. See S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990) (noting that federal courts have a sua sponte duty to examine jurisdiction before proceeding to the merits of a case). "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The court is presumed to lack jurisdiction unless the contrary appears affirmatively from the record. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of establishing grounds for the exercise of federal jurisdiction. Cal. ex rel. Locker v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). "A defendant may remove an action originally filed in state court only if the case originally could have been filed in federal court." In re NOS Commc'ns, MDL No. 1357, 495 F.3d 1052, 1057 (9th Cir. 2007) (citing 28 U.S.C. § 1441(a), (b)). "The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332." Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Section 1331 confers federal
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question jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Under § 1332, district courts have diversity jurisdiction over all civil actions "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States." 28 U.S.C. § 1332(a). A case is "not removable" on the basis of diversity jurisdiction unless the requisite jurisdictional facts are apparent from the face of the complaint. Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005) (holding that removability is determined from "the four corners of the applicable pleadings"). In the instant case, the Complaint filed by Plaintiff in state court was not removable. The Complaint alleges that NDEx "is a business formed as a limited liability company, headquartered and domiciled in Addison, Texas." Compl. ¶ 4. Wachovia repeats this averment in its Notice of Removal. Notice of Removal ¶ 4 ("Defendant NDEx West, LLC is a Delaware limited liability company headquartered in Addison, Texas."). The "headquarters" of a limited liability company is not germane for purposes of determining its citizenship. Unlike the citizenship of a natural person, the citizenship of a limited liability company or other unincorporated entity is the citizenship of its members. See Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) ("We ... hold that, like a partnership, an LLC is a citizen of every state of which its owners/members are citizens."). Here, neither the Complaint nor the Notice of Removal identifies any of NDeX's members or provides any facts regarding their citizenship. As a result, Wachovia had no basis upon which to remove the action. See Harris, 425 F.3d at 694; see also Deckard v. Wachovia Mortg., No. CV 10-2464 PA (AGRx), 2010 WL 1444569, at *1 (C.D. Cal. April 7, 2010) (allegation in Notice of Removal that "[NDEx is a] Delaware limited liability company headquartered in Addison, Texas" failed to meet defendant's burden of demonstrating removal jurisdiction). Likewise, the Complaint was not removable due to the paucity of jurisdictional facts regarding Wachovia or Wells Fargo Bank, FSB. The Complaint alleges no information regarding the citizenship of Wachovia, which Plaintiff merely describes as a "form
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unknown, headquarters and domicile unknown." Compl. ¶ 4. As to Wells Fargo Bank, FSB, the pleadings allege that it "is a business operating in Contra Costa County, California, form unknown, headquarters and domiciled at 420 Montgomery Street, San Francisco, CA 94104." Id. ¶ 5. Since the citizenship of neither of these parties is alleged, the Complaint was not removable. See Harris, 425 F.3d at 694 ("if no ground for removal is evident in the pleading, the case is not removable at that stage."). Moreover, the Notice of Removal also fails to allege grounds for removal. "Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties." Kanter v. WarnerLambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Although the Complaint names NDEx, Wachovia and Wells Fargo Bank, FSB, the Notice of Removal filed by Wachovia only purports to address its and NDEx's citizenship. Notice of Removal ¶ 3, 4. Wachovia offers no allegations whatsoever regarding the citizenship of Wells Fargo Bank, FSB. Indeed, the only mention of this particular Defendant appears on the caption page of the Notice of Removal, below the name and address of defense counsel, where it appears as follows: Mark T. Flewelling (#96465) [e-mail] Michael Rapkine (#222811) [e-mail] ANGLIN, PLEWELLING, RASMUSSEN CAMPBELL & TRYTTEN LLP 199 South Los Robles Avenue, Suite 600 Pasadena, California 91101 Tel: [phone] Fax: [phone] Attorneys for Defendant, Wachovia Mortgage, a division of Wells Fargo Bank N.A. (erroneously named "Wachovia Mortgage" and "Wells Fargo Bank, FSB") ("Wachovia") Notice of Removal at 1 (emphasis added). To the extent that Wachovia's position is that Wells Fargo Bank, FSB, is not an actual entity or that its citizenship otherwise should be disregarded for purposes of removal jurisdiction, it was incumbent on Wachovia to allege such facts in the body of its Notice of Removal. Wachovia's ambiguous reference to "Wells Fargo Bank, FSB" in stating the appearance of its counsel plainly is insufficient to
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establish diversity jurisdiction. See Kanter, 265 F.3d at 857 ("failure to specify state citizenship [is] fatal to [an] assertion of diversity jurisdiction.").
III. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED THAT, pursuant to 28 U.S.C. § 1447(c), the instant action is REMANDED to the Superior Court of California, County of Contra Costa. Plaintiff's motion to substitute and join parties is DENIED as moot. The Clerk shall close the file and terminate any pending matters. The hearing scheduled for April 5, 2011, is VACATED. IT IS SO ORDERED. Dated: March 30, 2011 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SOLBERG et al, Plaintiff, v. NDEX WEST, LLC. et al, Defendant. / Case Number: CV10-04600 SBA CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 31, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Christopher J. Solberg 1966 Mohawk Drive Pleasant Hill, CA 94523 Dated: March 31, 2011 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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