GMAC Mortgage, LLC v. McKeever et al
Filing
126
MEMORANDUM OPINION & ORDER: DENYING Haffey's 119 MOTION to Remand. Signed by Judge Jennifer B Coffman on 11/16/11.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 08-459-JBC
GMAC MORTGAGE, LLC,
V.
PLAINTIFF,
MEMORANDUM ORDER & OPINION
HEATHER BOONE MCKEEVER, ET AL.,
DEFENDANTS.
***********
This matter is before the court on Shane Haffey’s motion to remand (R.119).
For the reasons below, the motion will be denied.
This case involves an action to quiet title that was brought in state court
against four defendants: Gentry Mechanical Systems Inc., State Farm Banks,
F.S.B., Deutsche Bank Trust Company Americas, as Trustee (“Deutsche Bank”),
and Patricia Kelleher. Deutsche Bank removed the matter to this court under 28
U.S.C §1441, asserting diversity of parties. Haffey challenges removal based upon
the following arguments pertinent to this order: that the parties are not in complete
diversity, that no other defendants joined Deutsche Bank in the notice of removal,
and that a motion for default judgment was pending in state court at the time of
removal. None of these arguments is successful.
First, the parties are in complete diversity to Haffey, see 28 U.S.C. §1441, a
resident of Kentucky, because the doctrine of fraudulent joinder applies. Under
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that doctrine, the residencies of only Kelleher, Deutsche Bank, and State Farm are
considered for diversity purposes. Kelleher is a resident of Iowa. Even though
Haffey later contests Kelleher’s residency, both the complaint and notice of
removal list Kelleher’s residency as Iowa. Deutsche Bank is a resident of New
York, as its principal place of business is New York, New York. Despite Haffey’s
argument that the State Farm agent who sold the loan in dispute was a Kentucky
agent, Haffey lists State Farm Bank, F.S.B. as the defendant in this case, and State
Farm resides in Illinois.
The non-diverse party in this action, Gentry, is not considered in the diversity
analysis because Haffey asserts only a brief allegation against Gentry and states no
legal basis for the claim. No colorable basis exists for predicting that Haffey could
recover against Gentry, see Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d
904, 907. Haffey failed to provide in his pleading a statement showing that he is
entitled to relief from Gentry, see Ky. R. Civ. P. 8.01, Fed. R. Civ. P. 8(a)(2).
Therefore, while all ambiguities and disputes of state law should be resolved in
favor of the plaintiff, see Alexander v. Electronic Data Systems Corp., 13 F.3d
940, 948-49 (6th Cir. 1994), Deutsche Bank has met its burden of establishing
fraudulent joinder of a non-diverse party, see id. Consequently, Gentry is not
considered in the diversity analysis, and the other parties to this action stand in
complete diversity, satisfying the removal requirements under 28 U.S.C. §1441.
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Second, Deutsche Bank’s notice of removal remains effective under the
judicial rule of unanimity. Only Deutsche Bank had been served at the time it filed
its notice of removal on June 3, 2011. Because no other defendant listed in this
action was served by June 3, 2011, no consent of any other defendant was
required at the time of filing. City of Cleveland v. Ameriquest Mortg. Sec., Inc.,
615 F.3d 496, 501 (6th Cir., 2010). The rule of unanimity was not violated by
Deutsche Bank, and therefore, the notice of removal to this court was procedurally
valid.
Last, 28 U.S.C. §1447 (c) renders void Haffey’s argument that a motion for
default judgment pending in state court invalidated Deutsche Bank’s notice of
removal because Haffey’s motion for remand was filed more than 30 days after the
filing of Deutsche Bank’s notice of removal. Only motions to remand for lack of
subject matter jurisdiction may be considered after the 30-day period, see 28
U.S.C. §1447 (c), and this argument does not relate to the court’s subject matter
jurisdiction over this action. Even considering the argument, the court finds no
legal basis to render a removal ineffective based upon a pending, unresolved
motion in state court at the time a notice of removal was filed. Accordingly,
IT IS ORDERED that Haffey’s motion to remand (R.119) is DENIED.
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Signed on November 16, 2011
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