Ballew et al v. Roundpoint Mortgage Servicing Corporation et al

Filing 2

ORDER re 1 Notice of Removal filed by Roundpoint Mortgage Servicing Corporation and Random Properties Acquisition Corporation III. Defendants are to file an amended complaint that conforms to the findings of this order not later than December 30, 2010. Ordered by Judge Hugh Lawson on December 16, 2010. (mbh)

Ballew et al v. Roundpoint Mortgage Servicing Corporation et al

Doc. 2

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S T A DIVISION M AR C U S S. BALLEW and PAMELA E. BALLEW, P la in tiffs , v. R O U N D P O IN T MORTGAGE SERVICING C O R P O R AT IO N and RANDOM P R O P E R T IE S ACQUISITION C O R P O R AT IO N III, Defendants. ORDER T h is case was removed from the Superior Court of Tift County, Georgia, to th is Court on December 14, 2010. Because federal courts are courts of limited ju ris d ic tio n , they "always have an obligation to examine sua sponte their jurisdiction b e fo re reaching the merits of any claim." Kelly v. Harris, 331 F.3d 817, 819 (11th C ir. 2003). Consistent with the practices of this Court, the Notice of Removal was s u b je c te d to an initial review. Following review of the Notice of Removal, the Court d ire c ts Defendants to amend consistent with the following. P la in tiffs , Marcus S. Ballew and Pamela E. Ballew, filed an action in the S u p e rio r Court of Tift County, Georgia, on November 12, 2010. Plaintiffs named R o u n d p o in t Mortgage Servicing Corporation and Random Properties Acquisition C o rp o ra tio n , III, as Defendants. Plaintiffs seek to enjoin Defendants' foreclosure of th e real property located at 20 Eagle Drive, Tifton, Georgia. Thereafter, Defendants C iv il Action 7:10-CV-150 (HL)

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filed the Notice of Removal at issue here, alleging diversity jurisdiction. Specifically, D e fe n d a n ts allege that Plaintiffs are residents of Tift County, Georgia; that R o u n d p o in t Mortgage Servicing Corporation is a Florida corporation with its principal p la c e of business in North Carolina; and that Random Properties Acquisition C o r p o r a t io n , III is a Delaware corporation with its principal place of business in C o n n e c tic u t. A civil action "brought in a State court of which the district courts of the United S ta te s have original jurisdiction, may be removed by the defendant." 28 U.S.C. § 1441(a). District courts have original jurisdiction of all civil actions in which the a m o u n t in controversy exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332(a). T h e re is no statutory definition of citizen with regard to natural persons. F e d e ra l courts hold that an individual's citizenship is equivalent to "domicile" for p u rp o s e s of diversity jurisdiction. McCormick v. Anderholt, 293 F.3d 1254, 1257 (1 1 th Cir. 2002). Domicile requires one's physical presence within the state with the in te n t to make the state one's "`true, fixed, and permanent home and principal e s ta b lis h m e n t.'" Id. at 1257-58 (quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1 9 7 4 )). Furthermore, a person may reside in one place but be domiciled in another. M is s . Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S. Ct. 1957, 1608 (1 9 8 9 ). A complaint merely alleging residency, as opposed to state citizenship or d o m ic ile , is insufficient to invoke diversity jurisdiction. Duff v. Beaty, 804 F. Supp. 3 3 2 , 334 (N.D. Ga. 1992).
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A defendant removing a case to federal court based on diversity of citizenship b e a rs the burden of establishing the citizenship of the parties. Rolling Greens MHP, L .P . v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (citing W illia m s v. Best Buy Co., Inc. 269 F.3d 1316, 1318 (11th Cir. 2001)). In examining th e jurisdictional allegations presented in the Notice of Removal, the Court finds they a r e lacking. Specifically, Defendants have failed to identify the citizenship of each P la in tiff. As a result, the Court is unable to ascertain whether complete diversity of c itiz e n s h ip exists and, therefore, the Notice of Removal fails to satisfy the p re re q u is ite s of subject matter jurisdiction. However, the Court is of the opinion that D e fe n d a n ts should be allowed to amend to correct the deficiencies noted. A c c o r d in g ly, Defendants shall until December 30, 2010 in which to file an a m e n d m e n t that conforms to the findings of this Order. Failure to plead the n e c e s s a ry jurisdictional prerequisites in a timely manner will result in remand for lack o f jurisdiction.

S O ORDERED, this the 16th day of December, 2010.

/s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE m bh

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