Smith v. American Advisors Group, Inc.
ORDER denying 7 Motion to Remand to State Court Signed by Honorable David C. Bramlette, III on 9/6/2017 (EB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
BETSY PEARL SMITH, AS EXECUTRIX
OF THE ESTATE OF DESSIE R. WARREN
CIVIL ACTION NO. 3:17-cv-403-DCB-LRA
AMERICAN ADVISORS GROUP, INC.
ORDER AND OPINION
This cause is before the Court on plaintiff Betsy Pearl Smith,
acting as executrix of the estate of Dessie R. Warren Wilson,
(“Smith”)’s Motion to Remand (docket entry 7). Having carefully
considered the motion, response, and applicable statutory and case
law, and being otherwise fully informed in the premises, the Court
finds and orders as follows:
In 2008, Dessie Warren Wilson (“Wilson”) purchased a home and
Mississippi, (“the property”) for approximately $157,000.00. See
Doc. 1-1, p. 10. Wilson’s great nephew, Tommy Myers (“Myers”),
subsequently obtained a Special Warranty Deed conveying one lot of
Wilson’s Western Hills property to him. Id. at 4. Myers then
secured loans against the property, which authorized him to receive
$231,000.00. Id. at 7.
After finding that Myers acquired Wilson’s
property through fraud and undue influence, the Chancery Court of
Hinds County entered a Final Judgment on July 11, 2016, declaring
the Special Warranty Deed void ab initio. See id at 9-22.
On April 20, 2017, plaintiff Betsy Pearl Smith (“Smith”),
acting as executrix of Wilson’s estate, commenced the present
action in the Chancery Court of Hinds County to rescind the deeds
of trust executed by Myers and encumbering the Western Hills
property. According to Smith, the defendant, American Advisors
Group, Inc. (“AAG”), is the current holder and beneficiary seeking
information and belief,  Myers is in default as to the debt he
owes . . . and [the defendant] has commenced, or is threatening to
property.” Id. at 5.
AAG removed the action to federal court on
thereafter on June 19, 2017.
Under 28 U.S.C. § 1441, “any civil action brought in a State
court of which the district courts of the United States have
original jurisdiction may be removed . . . 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). The
jurisdiction under 28 U.S.C. § 1332. See Doc. 1.
AAG, as the
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
When considered on a motion to remand, federal removal
statutes are to be strictly construed against removal, and all
ambiguities or doubts are resolved in favor of remand.
In moving to remand, Smith claims that: (1) removal was
untimely, (2) the Court lacks diversity jurisdiction, and (3) the
Court should abstain from hearing the case.
asserts that the issues presented should be certified to the
Mississippi Supreme Court. The Court shall address each argument
A. Diversity Jurisdiction
Federal courts have original diversity jurisdiction over
civil actions between citizens of different states where the amount
in controversy exceeds § 75,000, exclusive of interest and costs.
28 U.S.C. § 1332(a). Diversity of citizenship between the parties
in this case is undisputed.1 Instead, Smith maintains that the
Court lacks jurisdiction because AAG has failed establish an amount
in controversy exceeding $75,000. According to Smith, the lack of
establish any claim in excess of $75,000, requires remand.
The plaintiff is a resident of Illinois, and AAG is a California
corporation. See Doc. 1, ¶¶ 11, 12; Doc. 1-1, p. 3.
When a complaint fails to set forth a specific amount of
damages, as in the case sub judice, the removing party must prove
by a preponderance of the evidence that the amount in controversy
exceeds the jurisdictional minimum. De Aguilar v. Boeing Co., 11
F.3d 55, 58 (5th Cir. 1993).
The removing defendant may satisfy
this burden by either (1) showing that it is “facially apparent”
from the complaint that the plaintiff’s claims exceed $75,000 or
(2) introducing “summary judgment-type” evidence to show that the
amount in controversy requirement is met. Kirby v. Bank of America,
2010 WL 114201, at *4 (S.D. Miss. Jan. 7, 2010) (citing White v.
FCI USA, Inc., 319 F.3d 672, 675 (5th Cir. 2003)). Jurisdiction is
judged by the amount in controversy at the time of removal. Gebbia
v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).
From the face of the Complaint and the exhibits attached
thereto, it is facially apparent that the amount in controversy
exceeds the jurisdictional minimum in this case. In cases seeking
equitable relief, the amount in controversy “is measured by the
value of the object of the litigation,” i.e. the value of the right
to be protected or the extent of the injury to be prevented. Garcia
v. Koch Oil Co. of Tex., Inc., 351 F.3d 636 (5th Cir. 2003) (quoting
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347 (1977));
Leininger v. Leininger, 705 2d. 727, 729 (5th Cir. 1983)). “[W]here
a plaintiff seeks to rescind or otherwise declare a contract to be
unlawful, the amount in controversy is judged by the consequences
of such rescission or declaration to all litigants.” Roberts v.
Chandaleur Homes, Inc., 237 F. Supp. 2d 696, 698 (S.D. Miss. 2002);
see also Kirby, 2010 WL 114201, at *4 (the amount in controversy
in an action seeking rescission of loan note and deed of trust was
“based upon the pecuniary consequences to those involved in the
attached and incorporated in Smith’s Complaint as Exhibit A,
$157,000.000, and that the deeds of trust executed by Myers were
secured for a sum of $231,000.00. Doc. 1-1, p. 7.
parties disagree about which value represents the “object of the
litigation,” an amount in controversy exceeding the jurisdictional
minimum is clearly apparent regardless of whether the property
value or the value of the deeds of trust is controlling. Should
Smith prevail, she will keep the home free from encumbrance; if
she is unsuccessful, however, she will retain ownership subject to
the encumbrance. Rescission of the deeds of trust would thus allow
Even assuming that the requisite amount in controversy is not
facially apparent from the initial pleadings, AAG has produced
records from the Hinds County Tax Assessor assigning a value of
$103,920.00 to the property, along with a copy of the two deeds of
trust Smith seeks to rescind, which confirm that the deeds secure
a sum of $231,000.00. See Docs. 12-1, 12-2, 12-3. The Court is
therefore satisfied that
AAG has, by a preponderance of the
evidence, established an amount in controversy surpassing the
requirements set forth in 18 U.S.C. § 1332(a) have been met, the
Court shall deny Smith’s motion to remand on this basis.
B. Timeliness of Removal
Smith also asserts that the defendant’s removal is barred as
untimely because the Notice of Removal was filed more than thirty
days after AAG was served with process.
Under 28 U.S.C. § 1446(b),
removing defendants must file a notice of removal within thirty
days after service of process upon the defendant. When computing
the thirty-day removal period under § 1446(b), courts within this
Circuit have applied Federal Rule of Civil Procedure 6(a), which
provides the method for computing a period of time when the statute
does not specify a method. See Brown v. Wilkinson Cty. Miss., 2008
WL 161007, at *1 (S.D. Miss. Jan. 15, 2008) (“Rule 6 applies to 28
U.S.C. § 1446(b)’s thirty-day requirement.”); see also Howard v.
CitiFinancial, Inc., 195 F. Supp. 2d 811, 819 (S.D. Miss. 2002);
James v. MRC Receivables Corp., 2016 WL 3675864, at *2 (W.D. La.
Inasmuch as Smith claims that the defendant failed to submit competent
summary judgment-type evidence with its Notice of Removal, the Court observes
that “the efficient procedure is to not require such ‘summary judgement’ proof
until after the initial consideration of the face of the complaint.” Allen v.
R. & H. Oil & Gas Co., 63 F.3d 1326, 1336 n.16 (5th Cir. 1995) (noting that
district courts may, after finding that the amount in controversy is not
facially apparent, require the parties to submit summary judgment-type proof).
May 25, 2016).
Rule 6(a)(1)(C) provides that “if the last day [of
the time period] is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day that is not
a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C).
While the parties do not dispute that AAG was properly served
in this matter, there appears to be some ambiguity as to when
service actually occurred. In their respective briefings on the
motion to remand, both Smith and AAG state that service of process
was effected on April 20, 2017. See Doc. 8, p. 3; Doc. 12, p. 3.
Yet, the Notice of Removal asserts that AAG was served on April
21, 2017. See Doc. 1, p. 2. Examination of the state court record
reveals that process was issued to “American Advisors Group, Inc.
c/o National Corporate Research, Ltd.” as early as April 20, 2017,
but the only completed proof of service on file indicates that
service was effected on May 8, 2017. See Doc. 5, p. 32.
Nonetheless, the Court finds that removal was timely under
either of these scenarios. Assuming AAG was served on April 20,
2017, the same day Smith’s Complaint was filed, the thirtieth day
following service would have been Saturday, May 20, 2017. Pursuant
to Rule 6, the deadline for filing a notice of removal was Monday,
May 22, 2017.
The same holds true if AAG was served on April 21,
2017, because the thirtieth day following service would have been
Sunday, May 21, 2017.
And if service upon AAG was not effected
until May 8, 2017, the removal deadline would have fallen on June
7, 2017, more than two weeks after the removal notice was filed.
Since AAG’s notice of removal was timely filed on March 22, 2017,
remand based on § 1446(b) is denied.
Notwithstanding the procedural and jurisdictional propriety
of removal, Smith urges the Court to abstain from exercising
jurisdiction over this matter.
When federal jurisdiction exists,
the Court has a “virtually unflagging obligation” to hear and
decide the case. Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584,
591 (2013) (quoting Colorado River Water Conservation Dist. v.
United States, 424 S. Ct. 800, 817 (1976)). “Abstention from the
exercise of federal jurisdiction is the exception, not the rule.”
Bank One, N.A. v. Boyd, 288 F.3d 181, 184 (5th Cir. 2002).
Although the plaintiff summarily asserts that abstention is
appropriate because her case presents unsettled issues of state
law, Smith fails to explain which, if any, abstention doctrine
favors discretionary remand. See generally Hampton v. Tunica Cty.
Bd. of Supervisors, 2009 WL 902043 (N.D. Miss. Mar. 31, 2009)
(summarizing the Pullman, Younger, Burford, Colorado River, and
Rooker-Feldman abstention doctrines). Having conducted a cursory
review of recognized abstention principles, the Court is unaware
of any authority which would favor abstention based on the limited
facts and argument presented. Without more, the Court cannot
conclude that abstention is warranted.
D. Request for Certification
As an alternative to remand, Smith moves to certify the legal
questions presented in her case to the Mississippi Supreme Court
pursuant to the authority vested in Mississippi Rule of Appellate
Rule 20 provides in relevant part:
When it shall appear to the Supreme Court of the United
States or to any United States Court of Appeals that
there may be involved in any proceeding before it
questions or propositions of law of this this state which
are determinative of all or part of that cause and there
are no clear controlling precedents in the decisions of
the Mississippi Supreme Court, the federal court may
certify such questions or propositions of law of this
state to the Mississippi Supreme Court for a written
opinion concerning such questions or propositions of
Miss. R. App. P. 20 (emphasis added). While federal appellate
courts have the authority to certify unsettled questions of state
courts. See Swindol v. Aurora Flight Sciences Corp., 805 F.3d 516,
520 (5th Cir. 2015) (noting that Miss. R. App. 20 provides the
Fifth Circuit with certification authority); but see Eott Energy
Pipeline Ltd. Partnership v. Hattiesburg Speedway, Inc., 303 F.
Supp. 2d 819, 826 (S.D. Miss. 2004) (acknowledging that
district court had no power to certify unsettled issue of state
law to the Mississippi Supreme Court); Travelers Property Cas. Co.
of America v. Federated Rural Ins. Exchange, 2009 WL 2900027, at
*7 n.9 (S.D. Miss. Sept. 3, 2009) (observing that “if the authority
existed,” the Court would be tempted to certify an unsettled issue
to the state supreme court). Smith’s request for certification of
the principle issues in this case to the Mississippi Supreme Court
is therefore denied.
IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s Motion to
Remand (docket entry 7) is DENIED.
SO ORDERED, this the 6th day of September, 2017.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE
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