Hunt v. Nationstar Mortgage, LLC et al
Filing
16
ORDER finding that this court has jurisdiction over this matter. Plaintiffs 4 Motion for Contempt is DENIED. Plaintiffs 8 Motion for Default and Motion to Remand and 11 Motion to Recuse, Motion for Default Summary Judgment and Motion to Remand, Motion to Void Foreclosure are DENIED without prejudice with leave to refile. Pursuant to this Courts Standing Order no. 14-01, this case is REFERRED to the next available Magistrate Judge for hearing and determining pretrial matters pending before the Court. Signed by Judge Richard W. Story on 10/25/2017. (rsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHRISTOPHER M. HUNT, SR.,
Plaintiff,
v.
NATIONSTAR MORTGAGE
LLC, DEUTSCHE BANK
NATIONAL TRUST
COMPANIES, ALLBERTELLI
LAW, and CORPORATION
SERVICE COMPANY,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
1:17-CV-02294-RWS
ORDER
This case comes before the Court following its Order to Show Cause as
to why this case should not be remanded for lack of subject matter jurisdiction.
After reviewing the record, the Court enters the following Order.
Background
Plaintiff filed this case in the Superior Court of DeKalb County, Georgia
on May 2, 2017. (Dkt. [3-1].) Defendants Nationstar Mortgage LLC
(“Nationstar”) and Deutsche Bank National Trust Company (“Deutsche Bank”)
(collectively “Defendants”) removed the case to this Court pursuant to 28
AO 72A
(Rev.8/82)
U.S.C. § 1332. (Dkt. [1].) In doing so, they pointed out that Defendant
Allbertelli Law is a potential citizen of Georgia. The Court therefore ordered
the parties to show cause as to why this case should not be remanded due to
lack of diversity and stayed all proceedings pending the Court’s ruling on the
issue of subject matter jurisdiction. (Order, Dkt. [5].)
Despite initial confusion as to the entity referred to as Allbertelli Law in
the Complaint, it is now clear that Plaintiff refers to The Albertelli Firm, P.C.
(“Albertelli”), a Georgia professional corporation. As Plaintiff is a citizen of
Georgia, Albertelli’s presence in this suit defeats diversity and deprives the
Court of subject matter jurisdiction unless Defendants can show that Albertelli
was fraudulently joined.
Discussion
I.
Subject Matter Jurisdiction
A.
Legal Standard
A defendant may remove a case from state court to federal court if the
federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a). A
district court lacks subject matter jurisdiction over a removal action when it
does not have “original jurisdiction over the plaintiff’s claims.” Univ. of S.
2
AO 72A
(Rev.8/82)
Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Original
jurisdiction under § 1441 arises if there is diversity of citizenship or the
complaint presents a federal question. “The district court may remand a case
sua sponte for lack of subject matter jurisdiction at any time.” Corp. Mgmt.
Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir.
2009). “Federal courts are courts of limited jurisdiction, and there is a
presumption against the exercise of federal jurisdiction, such that all
uncertainties as to removal jurisdiction are to be resolved in favor of remand.”
Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir.
2001). “[T]he burden is on the party who sought removal to demonstrate that
federal jurisdiction exists.” Friedman v. N.Y. Life Ins. Co., 410 F.3d 1350,
1353 (11th Cir. 2005) (quoting Kirkland v. Midland Mortg. Co., 243 F.3d
1277, 1281 n.5 (11th Cir. 2001)).
B.
Analysis
“Fraudulent joinder is a judicially created doctrine that provides an
exception to the requirement of complete diversity.” Triggs v. John Crump
Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). It can be established
“when there is no possibility that the plaintiff can prove a cause of action
3
AO 72A
(Rev.8/82)
against the resident (non-diverse) defendant” or “when there is outright fraud in
the plaintiff’s pleading of jurisdictional facts” in order to defeat diversity
jurisdiction. Id. The removing party has the burden of showing one of these
two circumstances by clear and convincing evidence. Henderson v. Wash.
Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). If fraudulent joinder has
been established, the Court “must ignore the presence of the non-diverse
defendant and deny any motion to remand the matter back to state court.” Id.
To determine whether fraudulent joinder exists, the Court must look to
the complaint at the time it was removed, as well as any affidavits and
deposition transcripts submitted by the parties. Pacheco de Perez v. AT&T
Co., 139 F.3d 1368, 1380 (11th Cir. 1998). If there exists “even a possibility
that a state court would find that the complaint states a cause of action against
any one of the resident defendants, the federal court must find that the joinder
was proper and remand the case to the state court.” Triggs, 154 F.3d at 1287
(quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir. 1983)).
“The plaintiff need not have a winning case against the allegedly fraudulent
defendant; he need only have a possibility of stating a valid cause of action in
order for the joinder to be legitimate.” Id. The Court evaluates a plaintiff’s
4
AO 72A
(Rev.8/82)
claims under the state’s pleading standards, not the standard for evaluating a
motion to dismiss under Rule 12(b)(6). Stillwell v. Allstate Ins. Co., 663 F.3d
1329, 1334 (11th Cir. 2011). The Court must accept all factual allegations in
the complaint as true and “construe them in the light most favorable to the
plaintiff.” Henderson, 454 F.3d at 1281 (quoting Simmons v. Sonyika, 394
F.3d 1335, 1338 (11th Cir. 2004)).
Looking solely at Plaintiff’s claims against Albertelli, the Court
concludes that the Complaint does not state a cause of action against Albertelli
that would survive dismissal in state court. Under Georgia’s notice pleading
standard, all that is required is that “the pleading gives fair notice and states the
elements of the claim plainly and succinctly.” Stillwell, 663 F.3d at 1334
(quoting Carley v. Lewis, 472 S.E.2d 109, 110–11 (Ga. Ct. App. 1996)).
“[P]leadings are to be construed liberally and reasonably” and are to “serve
only the purpose of giving notice to the opposing party of the general nature of
the contentions of the pleader.” Racette v. Bank of Am., N.A., 733 S.E.2d 457,
465 (Ga. Ct. App. 2012) (internal quotations omitted).
As it relates to Albertelli, the Complaint appears to allege that Albertelli
lied on its application to the Secretary of State with regards to the identity and
5
AO 72A
(Rev.8/82)
location of its registered agent. (Compl., Dkt. [3-1] ¶ 2, at 3–4.) As a result,
Plaintiff was unable to serve Albertelli in its prior litigation, resulting in
damages, both monetary and emotional, to Plaintiff. (Id. ¶ 3, at 4–6.) Since,
Plaintiff alleges, Albertelli is unauthorized to do business in Georgia due to its
application, any foreclosures it participated in were illegal. (Id. ¶ 3, at 5.)
Albertelli is also participating in the unauthorized practice of law in violation
of Rule 5.5 of the Georgia Rules of Professional Conduct. (Id. ¶ 2, at 3–4.)
As to Plaintiff’s claim that Albertelli lied on its application to the
Secretary of State and failed to maintain a registered agent, Georgia law
provides alternatives for service when service cannot be made upon the
registered agent. O.C.G.A. § 14-2-504. Georgia law does not create a private
cause of action in these circumstances. As to Plaintiff’s claim against
Albertelli for the unauthorized practice of law, “Georgia law does not
recognize a private right of action for the alleged unauthorized practice of law.”
Oswell v. Nixon, 620 S.E.2d 419, 422 (Ga. Ct. App. 2005). Neither of these
theories creates a cause of action that would survive dismissal in state court.
Plaintiff has not asserted any independent actions undertaken by
Albertelli for which he claims an entitlement to relief. He has therefore not
6
AO 72A
(Rev.8/82)
stated a possible claim against Albertelli, and its joinder was improper.
Albertelli’s citizenship is thus disregarded for determining whether diversity of
citizenship exists. Ignoring the non-diverse defendant, the remaining parties
are diverse from Plaintiff. Diversity of citizenship supported the removal of
this case, and the Court has subject matter jurisdiction.
II.
Motion for Contempt
While this case was pending in the Superior Court of DeKalb County,
Georgia, Plaintiff filed a Motion for Contempt [4] alleging that the Defendants
violated a court order forbidding foreclosure on his property. “Courts have
inherent power to enforce compliance with their lawful orders through civil
contempt.” Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301
(11th Cir. 1991). “A party seeking civil contempt bears the initial burden of
proving by clear and convincing evidence that the alleged contemnor has
violated an outstanding court order.” Commodity Futures Trading Comm'n v.
Wellington Precious Metals, Inc., 950 F.2d 1525, 1529 (11th Cir. 1992).
“Once a prima facie showing of a violation has been made, the burden of
production shifts to the alleged contemnor, who may defend his failure on the
grounds that he was unable to comply.” Id. “Parties subject to a court’s order
7
AO 72A
(Rev.8/82)
demonstrate an inability to comply only by showing that they have made in
good faith all reasonable efforts to comply.” Citronelle-Mobile, 943 F.2d at
1301 (internal quotation omitted). To meet this burden, the contemnor must do
more than merely assert an inability to comply. Rather, the contemnor must
“produce detailed evidence specifically explaining why he cannot comply”
with the court’s order. Parker v. Scrap Metal Processors, Inc., 468 F.3d 733,
740 (11th Cir. 2006). If, and only if, the alleged contemnor makes a sufficient
evidentiary showing, then the burden shifts back to the party seeking contempt
to prove the ability to comply. Wellington Precious Metals, 950 F.2d at 1529.
It appears from the record that the court order referred to by Plaintiff was
a temporary restraining order entered on September 2, 2014, by the Superior
Court of DeKalb County, Georgia. (Order, Dkt. [3-1], at 71–72.) This order
was entered in another connected case that was also removed to federal court.
Hunt v. Nationstar Mortgage, LLC, 1:14-CV-03649-RWS (N.D. Ga.). On
August 19, 2015, the Court entered an Order adopting the Report and
Recommendation and dismissing all claims with prejudice. Order, Hunt, 1:14CV-03649 (N.D. Ga. Aug. 19, 2015), Dkt. [39]. As such, there was no
outstanding court order that could have been violated by a foreclosure sale.
8
AO 72A
(Rev.8/82)
Plaintiff has failed to make a prima facie case for contempt. His Motion for
Contempt [4] is therefore DENIED.
III.
Other Motions
In the Order to Show Cause [5], the Court stayed all proceedings
pending a determination of whether the Court has subject matter jurisdiction in
this case. Since June 23, 2017, when that order was entered, Plaintiff has filed
a motion for default and to remand [8] and a motion to recuse, for default
summary judgment, to remand, and to void foreclosure [11]. These motions
should not have been filed while this case was stayed. They are therefore
DENIED without prejudice, and Plaintiff has leave to refile these motions.
Conclusion
In accordance with the foregoing, the Court finds that it has jurisdiction
over this matter. Plaintiff’s Motion for Contempt [4] is DENIED. Plaintiff’s
Motion for Default and Motion to Remand [8] and Motion to Recuse, Motion
for Default Summary Judgment and Motion to Remand, Motion to Void
Foreclosure [11] are DENIED without prejudice with leave to refile.
Pursuant to this Court’s Standing Order no. 14-01, this case is REFERRED to
the next available Magistrate Judge for hearing and determining pretrial
9
AO 72A
(Rev.8/82)
matters pending before the Court.
SO ORDERED, this 25th day of October, 2017.
________________________________
RICHARD W. STORY
United States District Judge
10
AO 72A
(Rev.8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?