Regions Bank v. KEYSER et al
Filing
14
ORDER denying 5 Motion to Dismiss Complaint; granting 8 Motion to Dismiss Complaint. Ordered by Judge Clay D. Land on 06/14/2012. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
REGIONS BANK,
*
Plaintiff,
*
vs.
*
CASE NO. 3:12-CV-15 (CDL)
MICHAEL L. KEYSER and JAMES R. *
EDMUND,
*
Defendants.
*
O R D E R
Plaintiff
this
action
R.
Edmond
(collectively, “Defendants”), alleging that Defendants
are in
against
breach
Regions
Defendants
of
contract
Bank
Michael
for
(“the
L.
failing
Bank”)
Keyser
to
brings
and
make
James
payments
on
three
promissory notes.1
Before this Court are Defendants’ Motions to Dismiss (ECF
Nos. 5 & 8).2 Defendants, proceeding pro se, contend that the
Banks’s Complaint should be dismissed because (1) there is a
parallel action pending in state court, (2) venue is improper in
this Court, (3) service of process was improper, and (4) this
Court lacks subject matter jurisdiction.
Defs.’ Mot. Dismiss ¶¶
1-5, ECF No. 5 at 3.
1
James Edmond’s surname is incorrectly spelled “Edmund” in the
Complaint. The Court uses his correct surname in this Order.
2
Defendants submitted identical Motions to Dismiss. Subsequent
citations are made only to ECF No. 5.
For the reasons set forth below, the Court denies Keyser’s
Motion to Dismiss and grants Edmond’s Motion to Dismiss based
upon a lack of subject matter jurisdiction over Edmond.
FACTUAL ALLEGATIONS
The Bank alleges that Defendants defaulted on three loans:
one loan extended to Defendants jointly and two loans extended
to Keyser individually.
Compl. ¶¶ 6, 8, 10, 12, 14, 16, ECF No.
1.
On June 22, 2007, Defendants obtained a loan from the Bank
and executed a promissory note (“9001 note”) for $54,421.50.
Compl. Ex. A, Promissory Note 1, ECF No. 1-1 at 2.3
Defendants
failed to make payments, and the Bank notified Defendants that
they were in default under the 9001 Note on January 13, 2012.
Compl. ¶ 21; Compl., Letter from E. Durlacher to M. Keyser & J.
Edmond (Jan. 13, 2012), Ex. B, ECF No. 1-1 at 5.
Keyser independently obtained two additional loans from the
Bank.
Keyser
executed
a
promissory
$21,860.00 on November 10, 2005.
note
(“9003
Note”)
for
Compl. Ex. C, Promissory Note
1, ECF No. 1-1 at 8.
Keyser executed a promissory note (“30001
Note”)
on
for
$500,000
January
22,
Promissory Note 1, ECF No. 1-1 at 14.
3
2008.
Compl.
Ex.
E,
Keyser failed to make
Defendants do not challenge the authenticity of the loan documents
the Bank attached to the Complaint.
Given that the documents are
central to the Bank’s claims and that their authenticity is not
challenged, the Court may consider them in ruling on Defendants’
Motions to Dismiss. E.g., Speaker v. U.S. Dep’t of Health & Human
Servs., 623 F.3d 1371, 1379 (11th Cir. 2010).
2
payments on these notes, and the Bank notified Keyser that he
was in default under both the 9003 Note and the 30001 Note on
January 13, 2012.
Compl. ¶¶ 26, 31; Compl. Ex. D, Letter from
E. Durlacher to M. Keyser (Jan. 13, 2012), ECF No. 1-1 at 11.
DISCUSSION
I.
Defendants’ Motion to Dismiss for Improper Venue
Defendants contend that venue is improper in the Middle
District of Georgia, Athens Division.
Although Defendants have
not specified the statutory basis for their motion, the Court
construes
the
motion
to
dismiss
as
one
brought
pursuant
to
Federal Rule of Civil Procedure 12(b)(3).
Venue
is
proper
in
“a
judicial
district
in
which
any
defendant resides, if all defendants are residents of the State
in which the district is located.”
Bank
alleges
that
venue
Defendants live here.
is
28 U.S.C. § 1391(b)(1). The
proper
Compl. ¶¶ 2-3.
in
this
district
because
Defendants maintain that
they live in Lincoln County, which is in the Southern District
of Georgia.
however,
did
Defs.’ Mot. to Dismiss 1, ECF No. 5.
not
submit
an
affidavit
establishing their alleged residence.
or
any
Defendants
evidence
As a result, the factual
statements in Defendants’ Motion to Dismiss are insufficient to
overcome the allegations of the Bank’s Complaint at this stage
of the proceedings.
Accordingly, the Court denies the Motion to
Dismiss for Improper Venue.
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II.
Defendants’ Motion to Dismiss for Insufficient Process
In addition to their challenge based on venue, Defendants
seek dismissal based on insufficient service of process.
The
Court construes Defendants’ Motion to Dismiss as one brought
pursuant to Federal Rule of Civil Procedure 12(b)(4).
was served on March 6, 2012.
Proof of Service, ECF No. 6.
Keyser was served on March 30, 2012.
7.
Defendants
assert
that
Edmond
the
Proof of Service, ECF No.
Bank
did
not
properly
serve
Keyser, but they offer no argument or evidence to refute the
Proof of Service filed by the Bank.
Accordingly, the present
record does not support dismissal on the basis of insufficient
service of process.
III. Defendants’ Motion to Dismiss for Lack of Subject Matter
Jurisdiction
Defendants also contend that the Court lacks subject matter
jurisdiction
over
this
action.
The
district
courts
of
the
United States have jurisdiction over civil actions in which the
parties
are
citizens
of
different
states
and
the
amount
in
controversy is more than $75,000, not including interest and
costs.
28 U.S.C. § 1332(a)(1).
Defendants contend that this
Court does not have subject matter jurisdiction because complete
diversity of parties does not exist. Additionally, Edmond argues
that this Court does not have subject matter jurisdiction over
the Bank’s claim against him because the amount in controversy
4
does not exceed $75,000 as to that claim.
The Court construes
Defendants’ Motion to Dismiss as one brought pursuant to Federal
Rule of Civil Procedure 12(b)(1).
A.
Complete Diversity
The
first
diversity
question
exists.
for
the
“Complete
Court
is
diversity
whether
requires
complete
that
no
defendant in a diversity action be a citizen of the same state
as any plaintiff.”
MacGinnitie v. Hobbs Grp., LLC, 420 F.3d
1234, 1239 (11th Cir. 2005), abrogated on other grounds by Hertz
Corp. v. Friend, 130 S. Ct. 1181, 1186 (2010).
For purposes of
diversity jurisdiction, a corporation is a citizen of the state
where it is incorporated or has its principal place of business.
28
U.S.C.
1332(c)(1).
A
corporation’s
principal
place
of
business is “the place where a corporation’s officers direct,
control,
and
coordinate
Corp., 130 S. Ct. at 1192.
the
place
where
the
the
corporation’s
activities.”
Hertz
“[I]n practice it should normally be
corporation
maintains
its
headquarters.”
Id.
The Bank’s Complaint alleges that the Bank is an Alabama
banking corporation and that Defendants are Georgia residents.
Compl. ¶¶ 1-4.
Defendants contend that the Bank is a Georgia
corporation and, therefore, complete diversity does not exist.
Defs.’ Mot. Dismiss 2, ECF No. 5.
Defendants have not submitted
any evidence in support of their contention that the Bank is a
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Georgia corporation.
Defendants summarily assert that the Bank
“[o]wns large amounts of land in the state” and “[h]as large
district
offices
and
branches.”
Id.
These
unsupported
assertions, standing alone, are insufficient to establish that
the Bank’s principal place of business is in Georgia.
Based on
the present record, the Court finds that the Bank is an Alabama
corporation and that the diversity of citizenship requirement
under 28 U.S.C. § 1332 is satisfied.
B.
Amount in Controversy
The next question is whether the amount in controversy is
met.
The
Bank
alleges
Edmond
and
Keyser
severally liable for breach of the 9001 Note.
are
jointly
and
Compl. ¶ 23.
The
Bank asserts claims related to the 9003 Note and the 30001 Note
only against Keyser and does not allege that Edmond is liable
for these Notes.
When
the
Compl. ¶¶ 28, 33.
Bank
filed
its
Complaint,
controversy for the 9001 Note was $51,735.22.
the
amount
in
Compl. ¶¶ 9, 23.
Though the Bank may be able to recover additional interest if it
receives a favorable judgment, the amount in controversy for the
purposes of diversity jurisdiction is “exclusive of interest.”
28 U.S.C. § 1332(a).
The Bank contends that if it receives a
favorable judgment, it will be entitled to attorney’s fees in
the amount of 15% of all principal and interest owed on the 9001
Note pursuant to O.C.G.A. § 13-1-11.
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Compl. ¶ 24.
Even if the
Court were to include statutory attorney’s fees as part of the
amount in controversy, the addition of attorney’s fees would
only bring the amount in controversy at the time of filing to
$59,495.50, well short of § 1332’s $75,000 requirement.
Because the amount in controversy does not exceed $75,000
requirement,
jurisdiction
this
over
Court
the
claim
does
not
brought
have
against
subject
Edmond,
matter
and
the
Court therefore grants Edmond’s Motion to Dismiss for Lack of
Subject Matter Jurisdiction.4
IV.
Defendants’ Motion to Dismiss in Favor of Pending State
Court Action
Finally, Defendants contend that even if the Court finds
subject matter jurisdiction, proper venue, and proper service of
process, the Court should decline jurisdiction in light of a
parallel state proceeding: Michael Keyser v. Regions Bank, Civil
Action File No. SU11CV1139 (Ga. Clarke County Super. Ct. Aug. 1,
2011) (“Clarke County Action”).
5.
Defs.’ Mot. Dismiss 2, ECF No.
The Bank removed the Clarke County Action to this Court.
See generally Notice of Removal, Keyser v. Regions Bank, 3:12CV-00048-CDL (M.D.Ga. Apr. 19, 2012), ECF No. 2. Because the
removal of the Clarke County Action to this Court precludes the
possibility
of
inappropriate
interference
4
with
a
state
court
The Bank only asserted 28 U.S.C. § 1332 as a basis for subject matter
jurisdiction (Compl. ¶ 5) and has not alleged that the Court may
exercise supplemental jurisdiction under 28 U.S.C. § 1367.
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proceeding, the Court denies the Motion to Dismiss in favor of a
pending state court action.
CONCLUSION
For the reasons set forth above, the Court grants Edmond’s
Motion to Dismiss (ECF No. 8), and the Court denies Keyser’s
Motion to Dismiss (ECF No. 5).
IT IS SO ORDERED, this 14th day of June, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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