DILLARD v. TD BANK, N.A. et al
Filing
12
MEMORANDUM OPINION & ORDER denying 11 Consent Motion to Remand. Signed by Judge Noel L. Hillman on 7/27/2020. (dmr)
Case 1:20-cv-07886-NLH-JS Document 12 Filed 07/28/20 Page 1 of 6 PageID: 48
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AYANA DILLARD,
Plaintiff,
1:20-cv-07886-NLH-JS
MEMORANDUM OPINION & ORDER
v.
TD BANK, NA, KATIE GORDON,
JOHN DOES 1-10,
Defendants.
APPEARANCES:
RACHEL S. LONDON
WALL & LONDON LLC
34 TANNER STREET
SUITE 4
HADDONFIELD, NJ 08033
On behalf of Plaintiff
EMILY J. DAHER
BALLARD SPAHR LLP
210 LAKE DRIVE EAST
CHERRY HILL, NJ 08002
On behalf of Defendants
HILLMAN, District Judge
On June 29, 2020, Defendant TD Bank, NA removed Plaintiff
Ayana Dillard’s case from New Jersey Superior Court to this
Court.
In its notice of removal, TD Bank avers that this
Court’s subject matter jurisdiction is based on the diversity of
citizenship of the parties and an amount in controversy in
excess of $75,000, exclusive of interests and costs, pursuant to
Case 1:20-cv-07886-NLH-JS Document 12 Filed 07/28/20 Page 2 of 6 PageID: 49
28 U.S.C. § 1332(a).
Plaintiff is a citizen of New Jersey, and
TD Bank is a citizen of Delaware.1
Plaintiff’s complaint also
named Defendant Katie Gordon as an individual defendant, but
Gordon had not been served prior to the filing of TD Bank’s
removal petition.
Gordon is a citizen of New Jersey.
On July
15, 2020, after this matter was removed from state court, Gordon
waived service of the complaint and was considered served on
that day.
On July 22, 2020, Plaintiff filed a “Consent MOTION to
remand” the matter to state court.
(Docket No. 11.)
The
proposed consent order states that because Defendant Gordon has
now been properly served, and Gordon has the same citizenship as
Plaintiff, the parties acknowledge that this Court lacks
diversity jurisdiction over the matter.
The parties are incorrect.
Procedurally, TD Bank’s removal
was proper even though Plaintiff’s complaint named a non-diverse
defendant.
When a forum defendant has not been properly joined
and served in an action, the non-forum defendant can
nevertheless remove the action through what some have called a
TD Bank is a national bank association organized under the laws
of the United States of America, with its main offices located
in the State of Delaware at 2035 Limestone Road, Wilmington.
Accordingly, TD Bank is a citizen of Delaware for purposes of
determining diversity jurisdiction. See Wachovia Bank, N.A. v.
Schmidt, 546 U.S. 303 (2006) (holding that a national bank is,
for purposes of diversity jurisdiction, a citizen of the state
in which its main office is located as stated in its charter).
1
2
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“snap removal.”
See Encompass Ins. Co. v. Stone Mansion Rest.,
Inc., 902 F.3d 147, 153 (3d Cir. 2018) (citing 28 U.S.C. §
1441(1)(b)(2) (“A civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) of this title
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.”).
Put differently, a snap
removal allows a non-forum defendant to remove an action before
the diversity-defeating forum defendant is served.
See id.
In
this matter, Gordon, the forum defendant, had not been properly
joined and served in this action when non-forum Defendant TD
Bank removed this action to this Court, and thus subject matter
jurisdiction under § 1332(a) was properly established at the
time of removal.
Contrary to the parties’ view, the post-removal service of
the non-forum defendant did not extinguish this Court’s subject
matter jurisdiction once attached.
See id. at 155 (after a non-
forum defendant removed the action and the forum defendant was
served after removal, affirming the district court’s denial of
the plaintiff’s motion to remand and the district court’s
continuing jurisdiction to consider the defendants’ motions to
dismiss).
Thus, the parties’ agreement to remand is without
force.
A “post-removal agreement to the remand of the case to
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state court does not provide the mechanism for remand.
The
parties cannot unilaterally consent to the remand of the case
when this Court had at the time of removal, and continues to
have, subject matter jurisdiction over the action.”
McNally v.
Waterford Township, 2019 WL 6117728, at *2 (D.N.J. Nov. 18,
2019).
Similar efforts by parties to return to state court are
also ineffectual when subject matter jurisdiction has been
established in this Court.
See id. (where the parties filed a
proposed consent order to remand based on the plaintiff’s postremoval amended complaint that dismissed his federal claim,
which was the basis for subject matter jurisdiction, finding
that the dismissal of the federal claims and their agreement to
remand did not provide a valid mechanism to remand the matter to
state court because subject matter jurisdiction existed under 28
U.S.C. § 1367(a)) (citing Duffy v. Absecon Police Department,
2019 WL 5265322, at *1 (D.N.J. Oct. 17, 2019) (citing Tom’s
Landscaping Contractors, LLC v. Ernest Bock & Sons, Inc., 2018
WL 5294510, at *2 (D.N.J. 2018)) (declining to endorse the
parties’ “Consent Order Permitting Plaintiff to File Amended
Complaint and For Remand of Entire Action to State Court,” where
the amended complaint would add a non-diverse party, because the
filing of the plaintiff’s amended complaint would not defeat
subject matter jurisdiction if such jurisdiction existed at the
time the defendant removed plaintiff’s original complaint)
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(citing Mollan v. Torrance, 22 U.S. 537, 539 (1824), quoted in
Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 570
(2004) (“It has been long and well-established that in
determining whether a federal court may exercise jurisdiction
based upon diversity of citizenship, the court must look to ‘the
state of things at the time of the action brought.’”); St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294–95 (1938)
(“It uniformly has been held that in a suit properly begun in
the federal court the change of citizenship of a party does not
oust the jurisdiction.
The same rule governs a suit originally
brought in a state court and removed to a federal court.”)); St.
Paul Mercury Indem. Co., 303 U.S. at 292–93 (announcing long ago
that “the plaintiff after removal, by stipulation, by affidavit,
or by amendment of his pleadings, reduces the claim below the
requisite amount, [] does not deprive the district court of
jurisdiction,” and further reiterating that “events occurring
subsequent to removal which reduce the amount recoverable,
whether beyond the plaintiff's control or the result of his
volition, do not oust the district court's jurisdiction once it
has attached”).
This Court has previously explained, “two things are
equally true.
This is a court of limited jurisdiction.
It must
not exercise its considerable power beyond the scope of its
authority as conferred by the Constitution and statute.
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However, it is equally so that this Court has an unflagging
obligation to maintain its jurisdiction, once conferred.”
Farren v. FCA US, LLC, 2018 WL 372168, at *3 (D.N.J. 2018).
Because Plaintiff has not challenged the procedural propriety of
the removal, the Court properly maintains subject matter
jurisdiction over the action under 28 U.S.C. § 1332(a) - at the
time of removal there was diversity of citizenship between
Plaintiff and Defendants, and the amount in controversy exceeded
$75,000.
The post-removal service of a forum defendant, who had
not been “joined and served” prior to removal, does not
extinguish this Court’s subject matter jurisdiction.
Consequently, the parties’ “Consent MOTION to Remand” [11] must
be denied.2
SO ORDERED.
Date: July 27, 2020
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Neither Plaintiff nor Defendants are prisoners of the federal
court if they would rather return to state court. Because
Defendants have not filed their answers to Plaintiff’s
complaint, Plaintiff may follow Fed. R. Civ. P. 41(a)(1)(A)(i)
by filing a notice of dismissal. Thereafter, Plaintiff may
refile her action in state court subject to whatever defenses
might attach to such filing under state law.
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