Amorati et al v. Mortgage Electronic Registration Systems, Inc. et al
Filing
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ORDER. IT IS ORDERED that P's 12 motion to remand is DENIED. Signed by Judge Larry R. Hicks on 8/10/2011. (Copies have been distributed pursuant to the NEF - PM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOHN AMORATI and KAREN AMORATI
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Plaintiff,
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v.
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MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; et al.,
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Defendants.
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3:11-cv-0331-LRH-VPC
ORDER
Before the court is plaintiffs John and Karen Amorati’s (“the Amoratis”) motion to remand
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filed on June 28, 2011. Doc. #12.1
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I.
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Facts and Procedural History
The Amoratis purchased real property through a mortgage note and deed of trust executed
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by defendant First Ohio Banc & Lending, Inc. Eventually, the Amoratis defaulted on the mortgage
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note and defendants initiated non-judicial foreclosure proceedings.
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Subsequently, the Amoratis filed a complaint against defendants in state court. Defendants
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removed the action to federal court based upon diversity jurisdiction. Doc. #1. Thereafter, the
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Amoratis filed the present motion to remand. Doc. #12.
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Refers to the court’s docket entry number.
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II.
Legal Standard
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Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district
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courts of the United States have original jurisdiction, may be removed by the defendant or the
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defendants, to the district court of the United States for the district and division embracing the
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place where such action is pending." 28 U.S.C. § 1441(a).
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Removal of a case to a United States district court may be challenged by motion. 28 U.S.C.
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§ 1441(c). A federal court must remand a matter if there is a lack of jurisdiction. Id. Removal
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statutes are construed restrictively and in favor of remanding a case to state court. See Shamrock
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Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566
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(9th Cir. 1992). On a motion to remand, the removing defendant faces a strong presumption against
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removal, and bears the burden of establishing that removal is proper. Gaus, 980 F.2d at 566-67;
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Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996).
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III.
Discussion
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A district court has original jurisdiction over civil actions where the suit is between citizens
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of different states and the amount in controversy, exclusive of interest and costs, exceeds $75,000.
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28 U.S.C. § 1332(a). Further, an action based on diversity jurisdiction is “removable only if none of
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the parties in interest properly joined and served as defendants is a citizen of the state in which such
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action is brought.” 28 U.S.C. § 1441(b).
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Here, defendants argue that there is complete diversity between the parties because non-
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diverse defendant Kirk K. Smith (“Smith”) is a fraudulently joined defendant whose citizenship
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cannot defeat the exercise of diversity jurisdiction. A fraudulently joined defendant does not
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“defeat removal on diversity grounds.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir.
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1998). Fraudulent joinder “occurs when a plaintiff fails to state a cause of action against a resident
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defendant, and the failure is obvious according to the settled rules of the state.” Ritchey, 139 F.3d at
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1318; see also McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987); Kruso v.
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International Tel. & Tel. Corp., 872 F.2d 1416, 1426-27 (9th Cir. 1989); Gasnik v. State Farm Ins.
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Co., 825 F.Supp. 245, 247 (E.D. Cal. 1992). In determining whether a cause of action is stated
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against a non-diverse defendant, courts look only to a plaintiff’s pleadings. Gardner v. UICI, 508
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F.3d 559, 561 n.3 (9th Cir. 2007).
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In Nevada, the allegations of a complaint are sufficient to assert a claim for relief when the
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allegations “give fair notice of the nature and basis” for a claim. Vacation Village, Inc. v. Hitachi
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Am., Ltd., 874 P.2d 744, 746 (Nev. 1994).
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The court has reviewed the documents and pleadings on file in this matter and finds that the
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Amoratis have failed to sufficiently assert any claim for relief against non-diverse defendant Smith.
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The sole allegation against Smith in the entire complaint only identifies Smith as the trustee of the
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deed of trust and states that he is included as a defendant for the sole purpose of enforcing any non-
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monetary judgment. There are no separate causes of action alleged against him. Thus, based on the
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allegations in the complaint, the court finds that non-diverse defendant Smith is a fraudulently
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joined defendant whose citizenship does not defeat the exercise of diversity jurisdiction.
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Accordingly, the court finds that there is complete diversity between the parties and that the
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exercise of diversity jurisdiction is appropriate.
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IT IS THEREFORE ORDERED that plaintiff’s motion to remand (Doc. #12) is DENIED.
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IT IS SO ORDERED.
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DATED this 10th day of August, 2011.
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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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