Griffin et al v. Bank of America, N.A. et al

Filing 20

ORDER GRANTING Plaintiff's 9 Motion to Remand. The Court does not have jurisdiction to consider Defendants' 4 7 Motions to Dismiss. The Clerk is DIRECTED to REMAND this case to the Superior Court of Forsyth County, Georgia. Signed by Judge Richard W. Story on 11/18/2013. (vld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
RICHARD T. GRIFFIN, and AMY
E. GRIFFIN,
Plaintiffs,
v.
BANK OF AMERICA, N.A.,
McCURDY & CANDLER, LLC,
and BAC HOME LOAN
SERVICING, LP,

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CIVIL ACTION NO.
2:13-CV-00084-RWS

Defendants.
ORDER
This case comes before the Court on Defendant McCurdy & Candler
LLC’s (“M&C”) Motion to Dismiss [4], Defendant Bank of America, N.A.’s
(“BANA”) Motion to Dismiss [7-1], and Plaintiffs Richard T. Griffin and Amy
E. Griffin’s Motion to Remand [9-1]. After reviewing the record, the Court
enters the following Order.
Discussion
Unless Congress explicitly provides otherwise, a defendant may remove
to federal court a civil action brought in state court, provided the federal court
has original jurisdiction over the action. 28 U.S.C. § 1441. District courts have

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original jurisdiction over civil actions between citizens of different States with
an amount in controversy greater than $75,000. 28 U.S.C. § 1332(a)(1).
“Diversity jurisdiction, as a general rule, requires complete diversity-every
plaintiff must be diverse from every defendant.” Palmer v. Hosp. Auth. of
Randolph Cnty., 22 F.3d 1559, 1564 (11th Cir. 1994) (citations omitted).
As master of his own Complaint, a plaintiff may join such claims and
parties in a single suit as are permitted under the law and the Federal Rules of
Civil Procedure. Of course, a plaintiff’s decision to join a non-diverse party has
repercussions for purposes of removal jurisdiction. However, a defendant’s
“right of removal cannot be defeated by a fraudulent joinder of a resident
defendant having no real connection with the controversy.” Wilson v. Republic
Iron & Steel Co., 257 U.S. 92, 97 (1921).
“The burden of establishing fraudulent joinder is a heavy one.” Pacheco
de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). “[T]he removing
party has the burden of proving that either: (1) there is no possibility the
plaintiff can establish a cause of action against the resident defendant; or (2) the
plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant
into state court.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)
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(citation omitted). “When considering a motion for remand, federal courts are
not to weigh the merits of a plaintiff's claim beyond determining whether it is
an arguable one under state law.” Id. (citation omitted). “If there is 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 joinder was proper and remand the case to state court.” Id. (citation
omitted).
Plaintiffs are Georgia residents and Defendant M&C is a Georgia
company. (Compl., [1-1] ¶¶ 1,3.) The issue before the Court is whether it has
jurisdiction to hear this case; specifically, whether M&C was fraudulently
joined by Plaintiffs. Plaintiffs allege in their Complaint that M&C is a joint
wrongdoer under O.C.G.A. § 51-12-30, claiming that all Defendants are jointly
and severally liable for wrongful foreclosure, intentional infliction of emotional
distress, attorney’s fees, and punitive damages. (Id. ¶¶ 78-83.) Construing the
Complaint’s factual allegations in the light most favorable to Plaintiffs, the
Court finds that Plaintiffs have stated an arguable claim under state law against
M&C. Absent complete diversity between the Parties, the Court must remand
this action to state court.
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Conclusion
In accordance with the foregoing, Plaintiffs’ Motion to Remand [9] is
GRANTED. The Court does not have jurisdiction to consider Defendants’
Motions to Dismiss ([4], [7]). The Clerk is DIRECTED to REMAND this
case to the Superior Court of Forsyth County, Georgia.

SO ORDERED, this 18th day of November, 2013.

________________________________
RICHARD W. STORY
United States District Judge

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