Wells Fargo Bank, N.A. v. Worsham et al
Filing
11
MEMORANDUM OPINION re 10 Order on Motion to Remand to State Court. Signed by District Judge Sharion Aycock on 4/14/2014. (bkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
WELLS FARGO BANK, N.A.
V.
PLAINTIFF
CIVIL ACTION NO. 1:13-CV-00247-SA-DAS
JERRY WAYNE WORSHAM, JR.,
AMY WORSHAM, SOONER TRUSTEE SERVICE,
1513 STATE PARK ROAD TRUST,
ANY AND ALL PERSONS WITH AN INTEREST IN
THE REAL PROPERTY BEARING THE MUNICIPAL
ADDRESS OF 1513 STATE PARK ROAD,
MOOREVILLE, MISSISSIPPI
DEFENDANTS
MEMORANDUM OPINION
Before the Court is Plaintiff’s Motion to Remand [4]. Upon due consideration of the
motion, responses, rules, and authorities, the Court finds as follows:
Factual and Procedural Background
Plaintiff Wells Fargo Bank, N.A. filed an action to quiet and confirm title and ratify
foreclosure sale in the Chancery Court of Lee County, Mississippi on March 11, 2013.
Thereafter, on December 30, 2013, Defendants Jerry Wayne Worsham, Jr. and Amy Worsham
(“Worshams”), proceeding pro se, filed a Notice of Removal [1] of this action from state court
on the basis of diversity jurisdiction. Plaintiff has filed a Motion to Remand [4], contending that
removal of this matter is not available on the basis of diversity of citizenship and that removal
was untimely. Additionally, Plaintiff argues that the Worshams had no “objectively reasonable
basis for seeking removal” and therefore requests that this Court award it costs and fees incurred
in responding to removal.
Standard
Federal courts are courts of limited jurisdiction.
Epps v. Bexar-Medina-Atascosa
Counties Water Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982). Original federal
diversity jurisdiction exists “where the matter in controversy exceeds the sum or value of
$75,000.00, exclusive of interest and costs, and is between . . . citizens of different States.” 28
U.S.C. § 1332(a); Addo v. Globe Life & Accident Ins. Co., 230 F.3d 759, 761 (5th Cir. 2000).
The Judiciary Act of 1789 provides that “any civil action brought in a State court of which the
district courts of the United States have original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United States for the district and division embracing
the place where such action is pending.” 28 U.S.C. § 1441(a). However, “[a] civil action
otherwise removable solely on the basis of the jurisdiction under section 1332(a) . . . may not be
removed if any of the parties in interest properly joined and served as defendants is a citizen of
the State in which such action is brought.” 28 U.S.C. § 1441(b)(2).
After removal of a case, the plaintiff may move for remand, and “[if] it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
“[B]ecause the effect of removal is to deprive the state court of an action properly before it,
removal raises significant federalism concerns, which mandate strict construction of the removal
statute.” Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995)
(internal citations omitted). Moreover, the Fifth Circuit has held that “[a]ny ambiguities are
construed against removal because the removal statute should be strictly construed in favor of
remand.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)
(citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
2
Analysis and Discussion
The Worshams state in their Notice of Removal [1] that “[d]iversity of citizenship exists
because Plaintiff is not a citizen of Mississippi.” However, the Worshams further state that they
“are citizens of Mississippi where the action is pending.”
Thus, pursuant to 28 U.S.C. §
1441(b)(2), it is clear that this Court lacks subject matter jurisdiction and this matter must be
remanded.1
The Notice of Removal is also defective in that Jerry Worsham was served with process
in March 2013 but did not file his Notice of Removal until December 2013, well over the thirty
days allowed by statute. See 28 U.S.C. § 1446(b)(2)(B) (“Each defendant shall have 30 days
after receipt by or service on that defendant of the initial pleading or summons described in
paragraph (1) to file the notice of removal.”).2
Plaintiff requests that the Court award costs and fees incurred in responding to the Notice
of Removal. Pursuant to 28 U.S.C. § 1447(c), “[a]n order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a result of the
removal.” However, the Fifth Circuit has held that “[t]here is no automatic entitlement to an
award of attorney’s fees.” Am. Airlines, Inc. v. Sabre, Inc., 694 F.3d 539, 541-42 (5th Cir. 2012)
1
The Worshams do not invoke federal question jurisdiction under 28 U.S.C. § 1331 in their Notice of Removal and
Plaintiff’s state court complaint raises no issue of federal law. See Hart v. Bayer Corp., 199 F.3d 239, 244 (5th Cir.
2000) (“[T]he plaintiff’s properly pleaded complaint governs the jurisdictional inquiry. If, on its face, the plaintiff’s
complaint raises no issue of federal law, federal question jurisdiction is lacking.”) (citation omitted). However, the
Worshams contend in both their Notice of Removal and in their response to Plaintiff’s Motion to Remand that they
are “being denied due process of the law in state court.” Nevertheless, neither an answer nor a counterclaim can
establish federal question jurisdiction. Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831,
122 S. Ct. 1889, 153 L. Ed. 2d 13 (2002). Accordingly, the Court finds that it does not have federal question
jurisdiction over this matter.
2
The Court additionally notes that Defendants Sooner Trustee Service and 1513 State Park Road Trust have not
joined or consented in writing to the removal. See 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed
solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the
removal of the action.”). However, the Worshams state in their Notice of Removal that “on information and belief,
no other co-Defendants have been served.” Plaintiff does not address the requirements of § 1446(b)(2)(A) or the
other named Defendants in its Motion to Remand. Thus, the Court will not consider the absence of these
Defendants in ruling on Plaintiff’s motion.
3
(quoting Valdes v. Wal–Mart Stores, Inc., 199 F.3d 290, 292 (5th Cir. 2000) (holding that the
“mere determination that removal was improper” does not require a district court to award
attorney’s fees)). Further, “[a]bsent unusual circumstances, courts may award attorney’s fees
under § 1447(c) only where the removing party lacked an objectively reasonable basis for
seeking removal.
Conversely, when an objectively reasonable basis exists, fees should be
denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S. Ct. 704, 163 L. Ed. 2d 547
(2005). Further,.
The Supreme Court has held that “[t]he appropriate test for awarding fees under §
1447(c) should recognize Congress’ desire to deter removals intended to prolong litigation and
impose costs on the opposing party, while not undermining Congress’ basic decision to afford
defendants a right to remove as a general matter, when the statutory criteria are satisfied.”
Martin, 546 U.S. at 133, 126 S. Ct. 704. Thus, as the Fifth Circuit has recognized, “[i]n that
regard, § 1447(c) fee awards are cost recoupments, hence punitive in policy only.” Am. Airlines,
Inc., 694 F.3d at 542.
In response to Plaintiff’s Motion to Remand, the Worshams offer no explanation for the
delay in filing their Notice of Removal nor do they address Plaintiff’s argument regarding their
status as forum-defendants under 28 U.S.C. § 1441(b)(2). Whereas removal of this matter on the
basis of diversity jurisdiction is clearly precluded by statute and the Worshams failed to comply
with the statutory requirements regarding timeliness of removal, the Court finds the Worshams
lacked any objectively reasonable basis for seeking removal and the award of costs and fees,
including attorney fees, is justified.
4
Conclusion
For the foregoing reasons, the Court finds removal of this matter is not available on the
basis of diversity jurisdiction. Further, the Worshams had no objectively reasonable basis for
removing this matter, and therefore, Plaintiff is entitled to its just costs and actual expenses,
including attorney fees, incurred as a result of removal.
Accordingly, Plaintiff’s Motion to Remand [4] is GRANTED and this matter is hereby
REMANDED to the Chancery Court of Lee County, Mississippi.
Additionally, Plaintiff’s
request for costs and expenses is GRANTED. Plaintiff shall file the appropriate documentation
with this Court no later than April 21, 2014, containing an itemized accounting of its just costs
and actual expenses, including attorney fees, incurred as a result of the removal of this action.
Because the Worshams are proceeding pro se, they shall have until May 5, 2014 to file any
objections as to specific itemized costs or amounts requested.
If Plaintiff fails to file its
documentation within the time allotted, its request for just costs and actual expenses, including
attorney fees, will be deemed waived.3
A separate order to that effect shall issue this day.
SO ORDERED on this, the 14th day of April, 2014.
_/s/ Sharion Aycock_________________
UNITED STATES DISTRICT JUDGE
3
“[A] district court is not divested of jurisdiction to award attorney fees and costs pursuant to § 1447(c) after a
remand has been certified.” Coward v. AC & S., Inc., 91 F. App’x 919, 922 (5th Cir. 2004); see also Weaver v.
Zurich Ins. Co., 2011 WL 4007883, at *4 (S.D. Tex. Sept. 7, 2011); Hines v. Plane Paint, Inc., 430 F. Supp. 2d 598,
605 (S.D. Miss. 2005).
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?