Hertel, et al. v. Mortgage Electronic Registration Systems, Inc., et al.

Filing 69

MEMORANDUM OPINION AND ORDER dismissing Defendant 1st Choice Title Services ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CURTIS HERTEL, et al.,
Plaintiffs,
File No. 1:12-CV-174
v.
HON. ROBERT HOLMES BELL
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
et al.,
Defendants.
/

MEMORANDUM OPINION AND ORDER
In an opinion dated October 4, 2012, this Court held that the non-diverse defendants
– Marshall Isaacs, Jeanne Kivi, Ellen Coon, eTitle Agency, Inc., 1st Choice Title Services,
Inc., and Attorneys Title Agency LLC – were fraudulently joined. (Dkt. No. 49.) Citing that
opinion, Attorneys Title Agency, Coon, and Kivi filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), which eTitle Agency joined. (Dkt. Nos. 52, 54.) Plaintiffs
did not file a response to either motion, and on November 14, 2012, the Court dismissed
these defendants because, in the October 4 opinion, the Court had decided that they were
fraudulently joined “after application of a test more lenient to Plaintiffs’ position than the
12(b)(6) analysis.” (Dkt. No. 67.) On October 23, 2012, the Court also dismissed Isaacs.
(Dkt. No. 60.)

On November 8, 2012, this Court issued an order to show cause why the remaining
fraudulently-joined defendant, 1st Choice Title Services, should not be dismissed for failure
to properly serve. (Dkt. No. 65.) Plaintiffs’ response demonstrates that 1st Choice was
properly served pursuant to Michigan law prior to the removal of the case. (Dkt. No. 68.)
In this response, Plaintiffs indicate that because 1st Choice has failed to appear before this
Court, plead, or otherwise defend in the time allowed, Plaintiffs will be requesting default
against 1st Choice. For the reasons that follow, the Court will sua sponte dismiss 1st Choice.
While the Court did not dismiss the non-diverse defendants in its opinion deciding
the issue of fraudulent joinder, that opinion mandates such dismissal, and the Court will not
require a motion by 1st Choice as a prerequisite to dismissal. Following that opinion, Isaacs
filed a proposed order dismissing him for the reasons stated in that opinion, and Plaintiffs
filed no objections. (Dkt. No. 51.) Subsequently, the Court dismissed Isaacs by citing the
fraudulent joinder opinion. While the remaining fraudulently-joined defendants filed a
motion for dismissal citing 12(b)(6), this motion relied on the determinations already made
in this Court’s October 4 fraudulent joinder opinion, and the Court granted the motion based
on that opinion which held that no colorable claim existed against the fraudulently-joined
defendants.
Although 1st Choice has failed to appear, or to request dismissal, the Court has
already determined that no claim exists against it. Accordingly,
IT IS HEREBY ORDERED that Defendant 1st Choice Title Services is
DISMISSED.
Dated: November 20, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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