Deutsche Bank National Trust Company v. Abed et al
ORDER ADOPTING REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Patrick J. Schiltz on January 27, 2017. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for HarborView
Mortgage Loan Trust Mortgage Loan
Pass‐Through Certificates, Series 2007‐2,
Case No. 16‐CV‐0958 (PJS/SER)
EMAD Y. ABED; MORTGAGE
SERVICES, INC., as nominee for
Homecomings Financial, LLC (F/K/A
Homecomings Financial Network, Inc.);
ASSOCIATION; UNITED STATES OF
AMERICA; JOHN DOE; and MARY
Jared D. Kemper and Kristina Kaluza, DYKEMA GOSSETT, PLLC; John P.
Dockry and Kalli L. Ostlie, SHAPIRO & ZIELKE, LLP, for plaintiff.
Emad Y. Abed, pro se.
This matter is before the Court on defendant Emad Abed’s objection to the
December 19, 2016 Report and Recommendation (“R&R”) of Magistrate Judge Steven E.
Rau.1 Judge Rau recommends granting the motion of plaintiff Deutsche Bank National
Abed’s filing is styled as a “motion for reconsideration.” The Court treats it as
an objection to the R&R.
Trust Company (“Deutsche Bank”) to remand. The Court has conducted a de novo
review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Based on that review, the Court
overrules Abed’s objection and grants Deutsche Bank’s motion to remand.
There are several problems with Abed’s attempt to remove this case to federal
First, Abed asserts that this Court has federal‐question jurisdiction because Abed
has alleged counterclaims arising under federal law. 28 U.S.C. § 1331. But a
counterclaim cannot provide the basis for federal‐question jurisdiction. See Holmes Grp.,
Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830‐32 (2002). Deutsche Bank’s
complaint against Abed does not assert any claim that arises under the Constitution or
laws of the United States, and therefore this Court does not have federal‐question
jurisdiction over this case.
Second, in his notice of removal, Abed asserts that there is also diversity
jurisdiction because he is a “resident” of Minnesota and Deutsche Bank is not. ECF
No. 1 ¶¶ 8‐9. This, however, is insufficient to establish diversity jurisdiction, as such
jurisdiction depends on the citizenship of the parties, not their residence. See Reece v.
Bank of N.Y. Mellon, 760 F.3d 771, 777 (8th Cir. 2014) (“When it comes to diversity
jurisdiction, the words ‘resident’ and ‘citizen’ are not interchangeable.”).
Third, after Deutsche Bank moved to remand his lawsuit to state court, Abed
filed an opposing memorandum in which he asserted that “he is a citizen of
Minnesota.” ECF No. 29 at 3. That might have taken care of the problem with Abed’s
notice of removal, but it created another problem. The forum‐defendant rule provides
that a civil action cannot be removed on the basis of diversity jurisdiction if any
defendant is a citizen of the state in which the action was brought. 28 U.S.C.
§ 1441(b)(2). Abed is a citizen of Minnesota, and he was sued in Minnesota, and thus
(as Judge Rau explained in the R&R), Abed may not remove this action to federal court
on the basis of diversity jurisdiction.
Finally, in his objection to the R&R, Abed tries to evade the forum‐defendant rule
brought to his attention by Judge Rau by asserting that, even though he said in his
notice of removal that “he is resident of the State of Minnesota and . . . his primary
residence is 110 Bank St. Se. Suite 405 Minneapolis, Minnesota” [ECF No. 1 ¶ 8], and
even though he told Judge Rau that “he is a citizen of Minnesota” [ECF No. 29 at 3], he
is, in fact, “a citizen of Dubai, UAE,” ECF No. 32 at 3. Abed did not raise this argument
before Judge Rau, however, and thus he is precluded from relying on it now. “A party
cannot, in his objections to an R&R, raise arguments that were not clearly presented to
the magistrate judge.” Hammann v. 1–800 Ideas.com, Inc., 455 F. Supp. 2d 942, 947‐48
(D. Minn. 2006) (citing Madol v. Dan Nelson Auto. Grp., 372 F.3d 997, 1000 (8th Cir.
2004)); see also Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067 (8th Cir.
2012) (“The district court properly refused to consider Ridenour’s argument that longer
statute of limitations periods applied to his claims because this argument was not
presented first to the magistrate judge.”).
Setting that aside, as the party seeking to invoke this Court’s jurisdiction, Abed
bears the burden of establishing diversity of citizenship by a preponderance of the
evidence. See In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010). Abed has
not met his burden, as his belated claim that he is not a citizen of Minnesota directly
conflicts with his earlier claim that he is a citizen of Minnesota—and seems inconsistent
with his earlier claim that he is a resident of Minnesota and that his primary residence is
in Minneapolis. See id. (“All doubts about federal jurisdiction should be resolved in
favor of remand to state court.”).
For all of these reasons, Abed has failed to establish that this Court has
jurisdiction over this case.
Based on the foregoing, and on all of the files, records, and proceedings herein,
the Court OVERRULES defendant’s objection [ECF No. 32] and ADOPTS the R&R [ECF
No. 31]. IT IS HEREBY ORDERED THAT:
Plaintiff’s motion for remand [ECF No. 8] is GRANTED.
This action is REMANDED to the Minnesota District Court, Fourth
Dated: January 27, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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