Hunt v. Nationstar Mortgage, LLC et al
Filing
47
ORDER denying 41 Motion for Reconsideration. Plaintiff has failed to show that the Court committed a clear error of law in adopting the 35 R&R. Signed by Judge Richard W. Story on 04/19/16. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHRISTOPHER M. HUNT, SR.,
Plaintiff,
v.
NATIONSTAR MORTGAGE
LLC, et al.,
Defendants.
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CIVIL ACTION NO.
1:14-CV-3649-RWS
ORDER
This case comes before the Court on Plaintiff’s Motion for
Reconsideration [41]. After reviewing the record, the Court enters the
following Order.
Background
This case arises out of Plaintiff’s attempt to halt the allegedly wrongful
foreclosure of his home. (See Compl., Dkt. [1-1] at 3.) In 2006, Plaintiff
obtained a $540,000 loan from Homecomings Financial LLC
(“Homecomings”), which was secured with property located at 1920 Anastasia
Lane, Atlanta, Georgia 30341 (“the Property”). (Id. at 17, 20.) As
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consideration for the loan, Plaintiff executed a security deed granting MERS a
security interest in the Property. (Security Deed, Dkt. [1-2] at 4-15.) At some
point, the note or security deed was assigned to Defendant Nationstar Mortgage
LLC (“Nationstar”). (Compl., Dkt. [1-1] at 3.)
Plaintiff alleges that, at the closing on the Property, the closing attorney
gave him a Truth in Lending document that raised Plaintiff’s concern about his
interest rate. (Id. at 5.) The document allegedly stated up front that his interest
rate would not increase for at least a year, but it also contained a clause
—buried within the hundred page document—that the mortgage rate “may”
increase. (Id.) When Plaintiff asked the closing attorney about this clause, he
apparently told Plaintiff that the “may increase” language was just boilerplate
and that the interest rate would remain the same for at least a year. (Id.) But
that is not what happened. Instead, Plaintiff claims that the interest rate
increased within three months of the closing, causing him to default. (Id.)
Defendants1 then sought to foreclose on Plaintiff’s Property and retained
1
The role of Defendant Deutsche Bank National Trust Companies (“Deutsche
Bank”) is not entirely clear from the Complaint, but presumably Plaintiff includes it as
one of the “Mortgage Companies” that were “trying to improperly foreclose after their
illegal and unethical acts.” (Id. at 3.)
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Defendant Albertelli Law as their attorneys to handle the foreclosure. (Id. at
2.)
Plaintiff filed his Complaint in DeKalb County Superior Court on
August 29, 2014, alleging mortgage fraud, dual tracking, breach of contract,
and seeking injunctive relief. (Id.) On November 12, 2014, Defendants
Nationstar and Deutsche Bank removed the case to this Court on the grounds of
diversity jurisdiction. (Notice of Removal, Dkt. [1] at 2.) Soon after, they filed
a motion to dismiss [5]. Plaintiff then filed two motions to remand [9, 24], two
motions for sanctions [26, 28], and a motion for reconsideration [20].
On July 27, 2015, Magistrate Judge Alan J. Baverman issued a Report
and Recommendation (“R&R”) recommending that the Court deny Plaintiff’s
motions and that it grant Defendants’ motion to dismiss. (Dkt. [35].) In his
R&R, Judge Baverman thoroughly explained his findings. First, he explained
that remand was not proper: Defendant Albertelli Law was fraudulently joined
and Defendants Nationstar and Deutsche Bank were diverse from Plaintiff, so
the Court had diversity jurisdiction. Second, he explained that dismissal was
proper because Plaintiff did not properly serve Defendants; his Complaint was
a shotgun pleading; and Plaintiff’s claims for fraud and breach of contract were
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time barred. After reviewing Plaintiff’s objections, the Court adopted Judge
Baverman’s R&R in full. (Dkt. [39].) Plaintiff now moves for reconsideration.
Discussion
I.
Legal Standard
Under the Local Rules of this Court, “[m]otions for reconsideration shall
not be filed as a matter of routine practice[,]” but rather, only when “absolutely
necessary.” LR 7.2(E), N.D. Ga. Such absolute necessity arises where there is
“(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or (3) a need to correct a clear error of law or fact.” Bryan v.
Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003). A motion for
reconsideration may not be used “to present the court with arguments already
heard and dismissed or to repackage familiar arguments to test whether the
court will change its mind.” Id. at 1259. Nor may it be used “to offer new
legal theories or evidence that could have been presented in conjunction with
the previously filed motion or response, unless a reason is given for failing to
raise the issue at an earlier stage in the litigation.” Adler v. Wallace Computer
Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga. 2001). Finally, “[a] motion for
reconsideration is not an opportunity for the moving party . . . to instruct the
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court on how the court ‘could have done it better’ the first time.” Pres.
Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916
F. Supp. 1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996).
II.
Analysis
While it is not clear from the face of his motion, Plaintiff indicates in his
reply that he seeks reconsideration because he believes the Court made a clear
error of law in adopting the R&R [35]. (Pl.’s Reply Br., Dkt. [44] at 2.)2 His
arguments appear to be limited to the Court’s decision to grant Defendants’
motion to dismiss and to deny his motions to remand. Thus, the Court will
frame its discussion around those motions.
A.
Defendants’ Motion to Dismiss
Plaintiff first argues that the Court improperly dismissed his Complaint
because he did in fact effect service on Defendants. (Pl.’s Mot. for Recons.,
Dkt. [41] at 2-3.) Yet this is not the first time Plaintiff has argued that service
was proper. Prior to removal, Plaintiff filed a motion for default judgment that
the Court denied because no return of service appeared in the record and
2
Plaintiff’s reply is not styled as a reply, but is titled “Corrected Plaintiff’s
Objections to Defendants Response with Cites of Law.” Nonetheless, Plaintiff clearly
intended this filing to serve as a reply, so the Court will construe it in that way.
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because Defendants made an unopposed argument that they were never
properly served. (Dkt. [10].) Plaintiff filed a motion for reconsideration and
directed the Court to exhibits that detailed his efforts to serve Defendants. (See
Dkt. [11] at 2.) After reviewing those exhibits, the Court concluded that they
did not establish proper service upon Defendants and therefore denied
Plaintiff’s motion for reconsideration. (See Dkt. [19] at 2.) Without presenting
any new evidence, Plaintiff now makes the same argument in yet another
motion for reconsideration. Because the Court has heard Plaintiff’s argument
before, it is not a legitimate basis for reconsideration. Bryan, 246 F. Supp. 2d
at 1259 (finding that motions for reconsideration are inappropriate when they
merely contain “arguments already heard and dismissed”). Even if it were,
Plaintiff offers nothing new that would change the Court’s previous
conclusion.
What is more, Defendants explicitly argued Plaintiff’s failure to effect
service as a ground for dismissal in their motion to dismiss. While Plaintiff
filed a response, it did not touch on that particular argument. Still, instead of
deeming Defendants’ argument unopposed, Judge Baverman meticulously
explained why Plaintiff’s efforts at service were insufficient and drew the
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conclusion that the Court should dismiss his Complaint for failure to effect
service. (Dkt. [35] at 19-25.) Thus, the Court has explained its conclusion that
Defendants were not properly served on at least two occasions. Because the
Court has heard and ruled on Plaintiff’s argument before, it cannot carry a
motion for reconsideration.
B.
Plaintiff’s Motions to Remand
Plaintiff next advances three reasons why the Court committed a clear
error of law in denying his motions to remand. First, he argues that Defendant
Albertelli Law never consented to removal, so Defendants failed to meet the
unanimity rule. (Pl.’s Mot. for Recons., Dkt. [41] at 3.) Under the unanimity
rule, a notice of removal is not effective unless all defendants consent to and
join the notice. See Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202,
1207 (11th Cir. 2008). Plaintiff’s argument fails, however, because only those
defendants “who have been properly joined and served” must give their
consent for removal. 28 U.S.C. § 1446(b)(2)(A). Here, Judge Baverman
properly found that Defendant Albertelli Law was: (1) fraudulently joined; and
(2) not properly served. Thus, Defendants Nationstar and Deutsche Bank did
not need Defendant Albertelli Law’s consent to remove this case. See Gardner
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v. TBO Capital LLC, 986 F. Supp. 2d 1324, 1331 (N.D. Ga. 2013) (holding
that defendants who are not properly served need not consent to removal); Diaz
v. Kaplan Univ., 567 F. Supp. 2d 1394, 1402 (S.D. Fla. 2008) (noting that
fraudulently joined defendants need not consent to removal).
Second, Plaintiff argues that Defendants waited too long to file their
notice of removal. (Pl.’s Mot. for Recons., Dkt. [41] at 4.) Indeed, “[t]he
notice of removal . . . shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial pleading . . . .”
28 U.S.C. § 1446(b)(1). Based on this language, Plaintiff argues that
Defendants acted too late because he served them sometime in September 2014
yet they did not file their notice of removal until November 12, 2014—well
after the 30 day window had closed. This argument, however, also fails.
The Supreme Court has held that the 30 day window set out in §
1446(b)(1) is not triggered until the plaintiff serves the defendant with both the
summons and the complaint. See Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 354 (1999). Here, contrary to Plaintiff’s claim,
Plaintiff did not properly serve Defendants in September 2014. In fact, as
discussed above, Plaintiff has not properly served Defendants at all. Because
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Plaintiff has never served Defendants with both the summons and the
Complaint, the 30 day window set out in § 1446(b)(1) never began. See
Gardner, 986 F. Supp. 2d at 1331 (finding that the 30 day removal window
never started running when the defendant was never served with process).
Thus, Defendants’ notice of removal on November 12, 2014, was timely. Id.;
see also Whitehurst v. Wal-Mart, 306 F. App’x 446, 448 (11th Cir. 2008)
(“[N]othing in the removal statute, or any other legal provision, requires that a
defendant be served with the complaint before filing a notice of removal.”);
Delgado v. Shell Oil Co., 231 F.3d 165, 177 (5th Cir. 2000) (“Generally,
service of process is not an absolute prerequisite to removal.”).
Finally, Plaintiff argues that Defendants could not remove this case at all
because Defendant Nationstar is a citizen of Georgia. (Pl.’s Mot. for Recons.,
Dkt. [41] at 4.) Plaintiff is correct that a case that is otherwise removable on
the basis of diversity jurisdiction “may not be removed if any of the parties in
interest properly joined and served as defendants is a citizen of the State in
which such action is brought.” 28 U.S.C. § 1441(b)(2); Henderson v.
Washington Nat. Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). But removal
was proper in this case. A review of Defendants’ Corporate Disclosure
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Statement [2] and Notice of Removal [1] reveals that Defendant Nationstar is
not a citizen of Georgia. Thus, Defendant Nationstar’s citizenship would not
prohibit the removal of this case under 28 U.S.C. § 1441(b)(2).
Conclusion
For the reasons above, Plaintiff has failed to show that the Court
committed a clear error of law in adopting the R&R [35]. Thus, Plaintiff’s
Motion for Reconsideration [41] is DENIED.
SO ORDERED, this 19th day of April, 2016.
________________________________
RICHARD W. STORY
United States District Judge
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