Isaacs v. Royal Bank of Canada et al
Filing
20
ORDER & OPINION entered by Judge Joe Billy McDade on 4/8/14. IT IS ORDERED that Defendant's Motion to Dismiss 15 is GRANTED. CASE TERMINATED. SEE FULL WRITTEN ORDER. cc: Plaintiffs by Clerk. (FDT, ilcd)
E-FILED
Tuesday, 08 April, 2014 03:26:32 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ANNA F. ISAACS and JODY D.
KIMBRELL,
)
)
)
Plaintiffs,
)
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v.
)
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ROYAL BANK OF CANADA, a Canadian )
Chartered Bank, RBC CAPTIAL
)
MARKETS CORPORATION,
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ANTHONY J. GIANANNI, RBC Vice)
President, TODD RHOADES, and
)
STEVEN SMITH,
)
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Defendants.
)
Case No. 14-cv-1036
ORDER &OPINION
This matter is before the Court upon the Motion To Dismiss (Doc. 15) brought
by Defendants Royal Bank of Canada, RBC Capital Markets Corporation and
Anthony J. Giannini pursuant to Federal Rule of Civil Procedure 12(b)(1). The
matter has been fully briefed and is ready for disposition. For the reasons stated
below the Motion to Dismiss is GRANTED.
LEGAL STANDARDS
In deciding a motion to dismiss for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1), the district court must accept all wellpleaded factual allegations as true and draw all reasonable inferences in favor of
the plaintiff. See Transit Exp., Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001).
On a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of
establishing that the jurisdictional requirements have been met. Schaefer v. Transp.
Media, Inc., 859 F.2d 1251, 1253 (7th Cir. 1988); Kontos v. Dep't of Labor, 826 F.2d
573, 576 (7th Cir. 1987). When a party moves for dismissal under Rule 12(b)(1), the
nonmoving party must provide competent proof of jurisdictional facts to support its
allegations. Schaefer, 859 F.3d at 1253; Kontos, 826 F.2d at 576.
FACTUAL BACKGROUND1
As best as this Court can decipher from the Amended Complaint,2 Anna
Isaacs and Jody Kimbrell are suing the Royal Bank of Canada, a Canadian
chartered bank, RBC Capital Markets Corporation, Anthony Giannini, Steven
Smith and Todd Rhoades for their involvement in extending them mortgages.
Plaintiffs allege these Defendants used false and fraudulent mortgage documents to
underwrite the Plaintiffs’ loans. The Amended Complaint alleges five causes of
action: Fraudulent Conveyance of Real Property, Fraudulent Mortgage Documents,
Deceptive Business Practices, Breach of Fiduciary Duty, and Gross Negligence.
Plaintiffs unambiguously state the basis for the Court’s jurisdiction over these
causes of action is 28 U.S.C. § 1332. (Doc. 6 at 1-2).
Plaintiffs state they are citizens of different states and countries other than
Defendants. (Doc. 6 at 2). They state that they are residents of Illinois and provide
their residential addresses but they do not affirmatively state that they are citizens
or domiciliaries of Illinois. Defendants have produced a declaration from Anthony
Unless otherwise noted, the Court draws the facts in this section from the
Amended Complaint (Doc. 6), treating the Plaintiffs’ allegations as true and
drawing all reasonable inferences in their favor, in accordance with the motion to
dismiss standard described above.
2 Arguably, the Amended Complaint fails to comply with the requirements of Rule
8(a)(2) of the Federal Rules of Civil Procedure as interpreted by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007) and its progeny. But that issue is not before the
Court.
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Giannini in which he affirms under penalty of perjury that he is a citizen and
resident of Illinois and was so when this action was commenced. (Doc. 17-2).
Defendants contend there is a pending state foreclosure action in which
Plaintiff Isaacs is a defendant, Federal National Mortgage Association v. Kimbrell
Realty/Jeth Court, LLC et al., Case No. 12-CH-97, currently pending in the Tenth
Judicial Circuit of Illinois, Peoria County. (Doc. 17 at 1). Plaintiffs concede that
Case No. 12-CH-97 is an ongoing state action. (Doc. 19 at 4). Defendants move for
dismissal of this action based upon lack of subject-matter jurisdiction as well as the
Colorado River abstention doctrine.3
DISCUSSION
The Amended Complaint clearly states that it is being brought pursuant to
28 U.S.C. § 1332, which confers diversity jurisdiction over the district courts, not
federal question jurisdiction. It is well established that “diversity jurisdiction does
not exist unless each defendant is a citizen of a different State from each plaintiff.”
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). “Under the rule of
complete diversity, if there are residents of the same state on both sides of a
lawsuit, the suit cannot be maintained under the diversity jurisdiction even when
there is also a nonresident party.” Krueger v. Cartwright, 996 F.2d 928, 931 (7th
Cir. 1993). Diversity jurisdiction is subject-matter jurisdiction. Home Fed. Sav.
Bank v. Ticor Title Ins. Co., 695 F.3d 725, 729 (7th Cir. 2012). When there is no
Under the Colorado River abstention doctrine, “when the proper exceptional
circumstances exist, a federal court can abstain from exercising jurisdiction and
defer to the concurrent jurisdiction of a state court when there is a parallel state
court action pending.” Starzenski v. City of Elkhart, 87 F.3d 872, 878 (7th Cir. 1996)
quoting Rosser v. Chrysler Corp., 864 F.2d 1299, 1306 (7th Cir. 1988); see also Colo.
River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
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subject-matter jurisdiction, a district court is without any power or authority to
adjudicate the matter and the case must be dismissed. See Murray v. Conseco, Inc.,
467 F.3d 602, 605 (7th Cir. 2006).4 The Court has reviewed the Amended Complaint
and has not found any federal law causes of action.
In this case, Plaintiffs state they are citizens of different states and countries
other than Defendants. (Doc. 6 at 2). They state that they are residents of Illinois
and provide their residential addresses but they do not affirmatively state that they
are citizens of Illinois. Although the Amended Complaint never states that the
Plaintiffs are citizens or domiciliaries5 of Illinois, given the factual allegations of
residency and that the Plaintiffs are proceeding pro se, the Court logically infers
that when Plaintiffs say they are residents of Illinois, they mean that they are
citizens of Illinois. “Citizenship” depends on where one is domiciled, Heinen v.
Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012), and these Plaintiffs
appear to be domiciled in Peoria County, Illinois. (See Doc. 6 at 1-2).
However, defendant Anthony J. Giannini is also a citizen and domiciliary of
the state of Illinois. (See Doc. 17-2). Therefore, complete diversity between the
parties is lacking and there is no diversity jurisdiction. There is no other viable
basis for this Court to retain jurisdiction over the matter. 28 U.S.C. § 1367(b)
disallows district courts from exercising supplemental jurisdiction over claims
brought in actions over which the courts had original jurisdiction based solely on 28
U.S.C. § 1332. Consequently, this matter must be dismissed.
Dismissal based upon lack of subject-matter jurisdiction cannot be with prejudice.
See Murray, 467 F.3d at 605.
5 A domiciliary is a person who resides in a particular place with the intention of
making it a principal place of abode. BLACK’S LAW DICTIONARY, (9th. ed. 2009).
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The Court makes no ruling on the issue of Colorado River abstention.
CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss [Doc. 15]
is GRANTED. CASE TERMINATED.
Entered this 8th day of April, 2014.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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