Kunzman v. Deutsche Bank National Trust Company et al

Filing 8

ORDER OF REMAND. This matter is remanded to the District Court of Larimer County, Colorado where it was originally filed as Case No. 11 CV 1387. By Judge Philip A. Brimmer on 9/12/11. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02328-PAB
WILLIAM KUNZMAN,
Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for
Argent Securities Inc., Asset-Backed Pass-Through Certificates,
Series 2005-W4, and
DEBORAH A. MORGAN, as Public Trustee of Larimer County, Colorado,
Defendants.

ORDER OF REMAND

This matter is before the Court sua sponte on the Notice of Removal [Docket No.
1] filed by defendant Deutsche Bank National Trust Company (“Deutsche Bank”). The
notice alleges that this Court has subject matter jurisdiction over this case pursuant to
28 U.S.C. § 1332. With respect to the citizenship of the parties, the notice further
provides in pertinent part that “plaintiff avers in the complaint that he is the owner of
property in Colorado, and thus is domiciled in the state of Colorado,” Docket No. 1 at 4,
¶ 9 (citing Docket No. 1-7 at 3, ¶ 1), and that “Deutsche Bank is incorporated in New
York, and therefore is a citizen of that state.” Docket No. 1 at 4, ¶ 10 (citing
MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005), Docket No. 17 at 4, ¶ 3).
In every case and at every stage of the proceeding, a federal court must satisfy
itself as to its own jurisdiction, even if doing so requires sua sponte action. Citizens

Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d
1289, 1297, 1301 (10th Cir. 1980). Absent an assurance that jurisdiction exists, a court
may not proceed in a case. See Cunningham v. BHP Petroleum Great Britain PLC, 427
F.3d 1238, 1245 (10th Cir. 2005). Courts are well-advised to raise the issue of
jurisdiction on their own, regardless of parties’ apparent acquiescence. First, it is the
Court’s duty to do so. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995)
(“[I]f the parties fail to raise the question of the existence of jurisdiction, the federal court
has the duty to raise and resolve the matter.”). Second, “[s]ubject matter jurisdiction
cannot be conferred or waived by consent, estoppel, or failure to challenge jurisdiction
early in the proceedings.” Laughlin, 50 F.3d at 873. Finally, delay in addressing the
issue only compounds the problem if it turns out that, despite much time and expense
having been dedicated to a case, a lack of jurisdiction causes it to be dismissed or
remanded regardless of the stage it has reached. See U.S. Fire Ins. Co. v. Pinkard
Const. Co., No. 09-cv-00491-PAB-MJW, 2009 WL 2338116, at *3 (D. Colo. July 28,
2009).
It is well established that “[t]he party invoking federal jurisdiction bears the
burden of establishing such jurisdiction as a threshold matter.” Radil v. Sanborn W.
Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). Therefore, when a defendant
removes a case from state court asserting the existence of diversity jurisdiction, the
removing defendant has the burden of establishing that the jurisdictional prerequisites
of § 1332 have been satisfied. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290
(10th Cir. 2001).

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Deutsche Bank invokes 28 U.S.C. § 1332(a)(1) as the basis for this Court’s diversity
jurisdiction. Section 1332(a)(1) states: “The district courts shall have original
jurisdiction of 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.”
In regard to its own citizenship, Deutsche Bank alleges that it is “incorporated in
New York, and therefore is a citizen of that state.” Docket No. 1 at 4, ¶ 10 (citing
MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005), Docket No. 17 at 4, ¶ 3). Deutsche Bank appears to represent that it is a corporation subject to the
provisions of 28 U.S.C. § 1332(c)(1).1 For example, in describing the relevant analysis
for determining its citizenship, Deutsche Bank asserts that “[d]omicile, in the context of
legal entities, is generally determined by where the entity is incorporated, registered, or
has its principle [sic] place of business.” Docket No. 1 at 4, ¶ 8 (emphasis added)
(citing MacGinnitie, 420 F.3d at 1239). However, as the court in MacGinnitie pointed
out, “[f]or diversity purposes, a corporation is a citizen of both the state where it is
incorporated and the state where it has its principal place of business.” 420 F.3d at
1239 (citing 28 U.S.C. § 1332(c)). Deutsche Bank has failed to allege its principal place
of business. Moreover, Deutsche Bank cites the state court complaint in support of its

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Deutsche Bank does not expressly allege that it is a corporation subject to 28
U.S.C. § 1332(c). See Eckerle v. Deutsche Bank Nat. Trust, 2010 WL 3984687, at *1
(D. Haw. Sep. 17, 2010) (“In the notice of removal, Defendants allege that [Deutsche
Bank National Trust] is a national banking association with its principal place of
business in California . . . .”); cf. Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006)
(addressing analysis for determining citizenship of national banking associations
pursuant to 28 U.S.C. § 1348).
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averment that it is only a citizen of New York. The state court complaint, however,
alleges that Deutsche Bank “is a corporation with a corporate address of 1761 East St.
Andrew Place, Santa Ana, California.” Docket No. 1-7 at 4, ¶ 3; cf. Roper v. Saxon
Mortgage Services, Inc., 2009 WL 1259193, at *2 (N.D. Ga. May 5, 2009) (“Defendant
Deutsche Bank National Trust Company exists under the laws of the State of California
with its principal place of business in California.”).2
In addition to failing to establish its own citizenship, Deutsche Bank incorrectly
states that citizenship of a natural person is “the state where they reside at the time of
removal.” Docket No. 1 at 4, ¶ 8. Rather, for purposes of diversity jurisdiction, an
individual is a citizen of the state in which he or she is domiciled. Crowley v. Glaze, 710
F.2d 676, 678 (10th Cir. 1983). Domicile, in turn, is determined by the combination of
physical presence in a location and an intent to remain there indefinitely. Miss. Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). Further, “‘[d]omicile’ is not
necessarily synonymous with ‘residence,’ and one can reside in one place but be
domiciled in another.” Id. In any event, Deutsche Bank fails to allege even the
residence of plaintiff. Its only factual averment regarding plaintiff’s citizenship is that
plaintiff “is the owner of property in Colorado.” Docket No. 1 at 4, ¶ 9 (citing Docket No.

2

The Court also notes that Deutsche Bank is named as a trustee for Argent
Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-W4 (“Argent”).
Argent is identified by Deutsche Bank as a limited liability company. See Docket No. 1
at 2, ¶ 2; see also Docket No. 1-7 at 4, ¶ 2. Deutsche Bank does not explain what, if
any, relevance Argent’s citizenship may have on the assessment of the Court’s
jurisdiction. Cf. U.S. Advisor, LLC v. Berkshire Prop. Advisors, No. 09-cv-00697-PABCBS, 2009 WL 2055206, at * 2 (D. Colo. July 10, 2009) (concluding that an LLC, much
like a partnership, is deemed to be a citizen of all of the states of which its members are
citizens) (listing cases).
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1-7 at 3, ¶ 1 (“Plaintiff owns real property located in Larimer County, Colorado . . . .”).
The foregoing deficiencies in Deutsche Bank’s jurisdictional averments raise a
number of uncertainties regarding the Court’s exercise of jurisdiction over this matter.
Where uncertainties exist regarding the Court’s jurisdiction, those uncertainties are
resolved in favor of remand. Martin, 251 F.3d at 1290; see also Laughlin v. Kmart
Corp., 50 F.3d 871, 873 (10th Cir. 1995) (“[T]here is a presumption against removal
jurisdiction.”). Therefore, it is
ORDERED that this matter is remanded to the District Court of Larimer County,
Colorado where it was originally filed as Case No. 11 CV 1387.

DATED September 12, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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