Akkan v. Nationstar Mortgage, LLC
Filing
17
OPINION AND ORDER adopting Magistrate Judge Linda T. Walkers Final Report and Recommendation 12 and remanding this action to the Superior Court of Cobb County, Georgia. It is further ordered that Defendant's Motion to Dismiss 3 is denied as moot. Signed by Judge William S. Duffey, Jr on 1/27/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
NURBANU E. AKKAN,
Plaintiff,
v.
1:16-cv-1999-WSD
NATIONSTAR MORTGAGE, LLC,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Nationstar Mortgage, LLC’s
(“Nationstar” or “Defendant”) and Plaintiff Nurbanu E. Akkan’s (“Plaintiff”)
Objections1 [14, 15] to Magistrate Judge Linda T. Walker’s Final Report and
Recommendation (“R&R”) [12], which recommends remanding this action to the
Superior Court of Cobb County.
I.
BACKGROUND
On May 12, 2016, Plaintiff, proceeding pro se, filed her “Verified
Complaint” (“Complaint”) in the Superior Court of Cobb County, Georgia.2 (See
1
On December 12, 2016, Plaintiff filed her “Motion to Vacate
Recommendation and Judgment and Objection to Motion to Dismiss,” [15] which
the Court construes as Plaintiff’s Objections to the R&R.
2
No. 16-1-3797.
Ex. A [1.1] at 2). Plaintiff appears to assert claims for wrongful foreclosure, fraud,
and preliminary injunctive relief against Defendant. Plaintiff “demands judgment
against Defendant for the wrongful institution of non-judicial foreclosure
proceedings . . . .” (Compl. at 20).
On June 15, 2016, Nationstar removed [1] the Cobb County action to this
Court based on diversity of citizenship pursuant to 28 U.S.C. § 1332.3
Nationstar, in its Notice of Removal, asserts that the members of Nationstar
are Nationstar Sub 1 LLC (“Sub1”) and Nationstar Sub 2 LLC (“Sub2”), and that
the sole member of Sub1 and Sub2 is Nationstar Mortgage Holdings, Inc. (“NSM
Holdings, Inc.”). (See Notice of Removal [1] at 2-3). Nationstar also asserts that
NSM Holdings, Inc. is incorporated in Delaware and has its principal place of
business in Texas. (Id.). NSM Holdings, Inc. is therefore a citizen of Delaware
and Texas. Because Nationstar’s members are citizens of Delaware and Texas,
Nationstar is also a citizen of Delaware and Texas.4 Nationstar asserts further that
“[u]pon information and belief, and based on the allegations in the Complaint,
Plaintiff is a resident of Cobb County, Georgia.” (Id. at 2).
3
Plaintiff’s Complaint raises only questions of state law and the Court only
could have diversity jurisdiction over this matter.
4
See Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d
1020, 1022 (11th Cir. 2004).
2
Because the Notice of Removal failed to properly allege the citizenship of
Plaintiff, on August 18, 2016, the Magistrate Judge issued an Order [10] directing
Defendant to file, on or before August 31, 2016, an amended Notice of Removal to
properly allege the parties’ citizenship.
On August 31, 2016, Nationstar filed its Amended Notice of Removal [11].
Defendant asserts, for the second time, that “[b]ased on the allegations of the
Complaint, Plaintiff is a resident of Cobb County, Georgia.” (See Amended
Notice of Removal [11.1] at 3) (emphasis added).
On November 16, 2016, Magistrate Judge Walker issued her R&R. Having
reviewed Defendant’s Amended Notice of Removal, the Magistrate Judge found
that Defendant failed to allege any facts to determine Plaintiff’s citizenship and
that Nationstar’s allegation that Plaintiff is a resident of Cobb County, Georgia,
was insufficient to show Plaintiff’s citizenship. Because Defendant’s Amended
Notice of Removal, like its original Notice of Removal, failed to allege any facts
“tending to show that Plaintiff has an intent to remain in Georgia,” (R&R at 3) the
Magistrate Judge determined that Nationstar failed to meet its burden to show
complete diversity because Defendant did not properly allege the citizenship of
Plaintiff. The Magistrate Judge concluded that the Court does not have diversity
jurisdiction over this matter and recommended that this case be remanded to the
3
state court for lack of subject matter jurisdiction.
On November 30, 2016, and on December 2, 2016, respectively, Defendant
and Plaintiff filed their Objections to the R&R.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112
(1983). A district judge “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).
Plaintiff’s Objections are conclusory and do not address the Magistrate
Judge’s reasons for recommending remand.5 These are not valid objections and
5
For example, Plaintiff asserts that she “trusts that the Judge, having carefully
surveyed Plaintiff’s Complaint, Exhibits and other Motions, will fulfill what is
4
the Court will not consider them. See Marsden v. Moore, 847 F.2d 1536, 1548
(11th Cir. 1988) (“Parties filing objections to a magistrate’s report and
recommendation must specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by the district court.”).
Defendant objects to the Magistrate Judge’s conclusion that the Court lacks
diversity jurisdiction over this matter, and the Court reviews this conclusion de
novo.
B.
Analysis
28 U.S.C. § 1441(a) provides that “any civil action brought in a State court
of which the district courts of the United States have original jurisdiction, may be
removed by the defendant.” The Court’s jurisdiction in this case is premised on
diversity of citizenship, which authorizes federal jurisdiction over an action in
which the amount in controversy exceeds $75,000.00, and is between citizens of
different states. 28 U.S.C. § 1332(a)(1).6 In removed cases, the removing
defendant has the burden to establish the existence of diversity jurisdiction. See
Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). “Diversity
jurisdiction, as a general rule, requires complete diversity—every plaintiff must be
lawful and just and stand with the Court of Common Law Justice as a duly sworn
Public Officer and let the Plaintiff have her day in court.” (Obj. at 2).
6
It is undisputed that the jurisdictional amount in controversy is satisfied.
5
diverse from every defendant.” Palmer Hosp. Auth. of Randolph Cnty., 22 F.3d
1559, 1564 (11th Cir. 1994).
Defendant argues that the Court lacks authority to sua sponte remand this
action to state court because “the allegations in Plaintiff’s Complaint sufficiently
establish [s]he is a Georgia citizen.” (Obj. at 6). Nationstar, in both its Notice of
Removal and Amended Notice of Removal, asserts that “[u]pon information and
belief, and based on the allegations in the Complaint, Plaintiff is a resident of Cobb
County, Georgia.” (See Notice of Removal [1] at 2; see also Amended Notice of
Removal [11.1] at 3) (emphasis added). This allegation is insufficient because
Defendant is required to show Plaintiff’s citizenship, not residence. See Travaglio
v. American Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013) (“Residence alone is
not enough.”); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)
(“Citizenship, not residence, is the key fact that must be alleged in the complaint to
establish diversity for a natural person.”). For United States citizens, “[c]itizenship
is equivalent to ‘domicile’ for purposes of diversity jurisdiction,” and “domicile
requires both residence in a state and ‘an intention to remain there indefinitely.’”
Id. (quoting McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002)).
Nationstar has not alleged any facts in its Amended Notice of Removal to show
6
Plaintiff’s citizenship, and the Court is thus unable to determine if “every plaintiff
[is] diverse from every defendant.” See Palmer, 22 F.3d at 1564.
“If a party fails to specifically allege citizenship in their notice of removal,
the district court should allow that party ‘to cure the omission’, as authorized by
§ 1653.”7 Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294,
1297 (11th Cir. 2009) (quoting D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co.,
608 F.2d 145, 146-47 (5th Cir. 1979)). Here, Defendant has had ample
opportunity to cure its omission and establish that removal is appropriate. Because
Defendant’s original Notice of Removal did not establish Plaintiff’s citizenship,
the Court provided Defendant with an opportunity to cure this jurisdictional defect
by ordering Defendant to “file an amended notice of removal properly alleging [the
parties’ citizenship] on or before August 31, 2016.” (See August 18, 2016, Order
[10] at 6). After the Court allowed Defendant a second opportunity to demonstrate
Plaintiff’s citizenship, Nationstar, in its Amended Notice of Removal, continues to
rely on its allegation that Plaintiff is a resident of Georgia. (See Amended Notice
of Removal [11.1] at 3). “While such an averment as to residency, of course, is not
conclusive proof of citizenship . . . any qualms the district court may have had
7
28 U.S.C. § 1653 provides that “[d]efective allegations of jurisdiction may
be amended, upon terms, in the trial or appellate courts.”
7
concerning the distinction between the two are best addressed by allowing
[Defendant] to amend the removal petition to cure the defect under 28
U.S.C.§1653.” In re Allstate Ins. Co., 8 F.3d 219, 222 at n. 4 (5th Cir. 1993). This
Court allowed Defendant an opportunity to amend its Notice of Removal, and
Defendant failed to cure the defect. The Court will not grant Defendant another
bite at the apple.8 See Watson v. Carnival Corp., 436 F. App’x 954, 955 (11th Cir.
2011) (finding defendant “should not have a second bite at the apple, particularly
because it offered no new evidence supporting removal”); see also Kozel v. Kozel,
No. 8:16-cv-1384-T-36TGW, 2016 WL 4163562, at * 8 (M.D. Fla. Aug. 4, 2016)
8
To the extent Defendant relies on the Eleventh Circuit’s decision in Artjen to
argue that Nationstar’s failure to allege Plaintiff’s citizenship “constitutes a
procedural, rather than jurisdictional, defect,” and thus the Court cannot remand
this action sua sponte, Defendants’ reliance on Artjen is misplaced. See Artjen,
561 F.3d at 1297 (“[Defendant’s] failure to allege, in its notice of removal, the
plaintiff’s citizenship at the time the original petition was filed constitutes a
procedural, rather than a jurisdictional, defect; although [Defendant] failed
conclusively to demonstrate diversity, the record discloses no dispute that it in fact
existed.”). In Artjen, the Eleventh Circuit held that a district court’s sua sponte
remand was improper because a court should allow a party to cure a failure to
specifically allege citizenship in the notice of removal. Id. Here, the Court
allowed Defendant to cure its failure to specifically allege Plaintiff’s citizenship in
its Notice of Removal by ordering Defendant to file an Amended Notice of
Removal. The Eleventh Circuit also found that remand was improper because “the
record disclos[ed] no dispute that [diversity] existed.” Id. Contrary to Defendant’s
contentions, it is not clear that diversity in fact exists because Nationstar does not
allege any facts to demonstrate Plaintiff’s citizenship in Georgia. Defendant’s
objection on this ground is overruled.
8
(“[T]he Court considered the merits of Defendant’s Amended Notice of Removal
and it did not cure the defects in the original. Thus, remand is required.”).
Because Defendant fails to meet its burden to show that the parties are
completely diverse, the Court lacks subject matter jurisdiction, and this action is
required to be remanded. See 28 U.S.C. § 1447(c) (“If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.”). Defendant’s Objections are overruled.9
III.
CONCLUSION
For the foregoing reasons, and finding no plain error in the findings and
conclusions in the R&R to which no objection was made,
IT IS HEREBY ORDERED that the parties’ Objections [14, 15] are
OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Linda T. Walker’s
Final Report and Recommendation [12] is ADOPTED.
IT IS FURTHER ORDERED that this action be REMANDED to the
Superior Court of Cobb County, Georgia.
9
On June 16, 2016, Nationstar filed its Motion to Dismiss [3]. Because the
Court dismisses this action sua sponte for lack of subject-matter jurisdiction, the
Court does not reach the merits of Defendant’s Motion to Dismiss and it is denied
as moot.
9
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss [3] is
DENIED AS MOOT.
SO ORDERED this 27th day of January, 2017.
10
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