CITIMORTGAGE, INC. v. VANSTONE et al

Filing 3

MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 7/23/2014. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CITIMORTGAGE, INC.,
Plaintiff,
v.
JOHN R. VANSTONE, et al.,
Defendants.

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CIVIL ACTION NO. 14-4600 (MLC)
MEMORANDUM OPINION

THE PLAINTIFF BANK brought this foreclosure action in state court. (See dkt.
entry no. 1-1, Compl.) The plaintiff listed four defendants: (1) John R. Vanstone;
(2) Mrs. John R. Vanstone, spouse of John R. Vanstone; (3) Midland Funding, LLC
(“MFLLC”); and (4) Mortgage Electronic Registration Systems, Inc., as nominee for
American Brokers Conduit (“MERS”). (Id.) John R. Vanstone alone removed this action
to this Court based on subject-matter jurisdiction pursuant to 28 U.S.C. § (“Section”)
1332(a). (See dkt. entry no. 1, Notice of Removal at 3-4.) John R. Vanstone alleges that
he is a New Jersey citizen, and then alleges without supporting documentation that:
(1) the “Plaintiff is a citizen of New York”; (2) “Mrs. John R. Vanstone is deceased”;
(3) MFLLC “is a citizen of California”; and (4) MERS “is a citizen of Virginia”. (Id. at
3.) The notice of removal is deficient, and this removal is barred, for several reasons.
THE REMOVAL is barred by the forum-defendant rule. Pursuant to the forumdefendant rule, a civil action that would be otherwise removable under Section 1332(a)

may not be removed if any defendant is a citizen of the state in which that action has been
brought. See 28 U.S.C. § 1441(b)(2); see Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84
(2005) (stating “[d]efendants may remove an action on the basis of diversity of
citizenship if there is complete diversity between all named plaintiffs and all named
defendants, and no defendant is a citizen of the forum State”); Bor. of W. Mifflin v.
Lancaster, 45 F.3d 780, 785 (3d Cir. 1995) (stating “[Section] 1441(b) diversity cases
have an additional obstacle to removal: a resident defendant is barred from removing to
federal court”). The removal of this action is barred because at least one defendant —
John R. Vanstone — is a citizen of the state in which this action was brought, i.e., New
Jersey.
ASSUMING that Mrs. John R. Vanstone is indeed deceased, the notice of removal
is deficient because it lacks the required allegation as to the citizenship of her estate. See
28 U.S.C. § 1332(c)(2).
MFLLC AND MERS have not separately consented to removal in writing. John
R. Vanstone had to “obtain the unanimous consent of all defendants before seeking to
remove the case to federal court”. Step Plan Servs. v. Koresko, 219 Fed.Appx. 249, 250
(3d Cir. 2007) (explaining rule of unanimity); see also First Am. Title Ins. Corp. v. JP
Morgan Chase & Co., 384 Fed.Appx. 64, 66 (3d Cir. 2010) (stating “[r]emoval . . .
requires unanimity among defendants”). The removal is barred on this ground.

2

THE NOTICE OF REMOVAL is also deficient because it fails to properly
demonstrate the plaintiff’s citizenship and the citizenship of MERS, both of which appear
to be corporations. See 28 U.S.C. § 1332(c)(1) (stating corporation is deemed to be
citizen of the state of incorporation and the state where it has its principal place of
business).
THE NOTICE OF REMOVAL is also deficient because it fails to properly
demonstrate the citizenship of MFLLC, which appears to be a limited liability company.
Limited liability companies are unincorporated associations that are deemed to be citizens
of the states in which all of their members are citizens, not the states in which they (1)
were formed, and (2) have their principal places of business. Zambelli Fireworks Mfg.
Co. v. Wood, 592 F.3d 412, 418-20 (3d Cir. 2010). The citizenship of each membership
layer must be traced and analyzed to determine a limited liability company’s citizenship.
Id. at 420. The name and citizenship of each member must be specifically alleged. See S.
Freedman & Co. v. Raab, 180 Fed.Appx. 316, 320 (3d Cir. 2006) (stating citizenship is to
be alleged “affirmatively and distinctly”).1
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It seems likely that if John R. Vanstone had properly analyzed the citizenship of all of

the parties, then he would have found that the plaintiff and at least one defendant — perhaps
MFLLC or MERS — are deemed to be citizens of the same state. See Caribbean Telecomms. v.
Guy. Tel. & Tel. Co., 594 F.Supp.2d 522, 530 (D.N.J. 2009) (stating Section 1332 does not
permit a party to select among the multiple “jurisdictional citizenships” of an entity in order to
preserve or defeat the diversity-of-citizenship requirement); see also Lincoln Prop. Co., 546 U.S.
at 89 (requiring complete diversity between each plaintiff and each defendant).

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THE COURT will therefore remand the action to state court. The Court will
issue an appropriate order and judgment.2

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: July 23, 2014

2

Subject-matter jurisdiction pursuant to Section 1331 — although not asserted by John

R. Vanstone in support of removal — is also lacking. See Bank of N.Y. Mellon Trust Co., Nat’l
Ass’n v. Poczobut, No. 13–3303, 2013 WL 4012561, at *2 (D.N.J. Aug. 5, 2013) (remanding
foreclosure action for, inter alia, lack of Section 1331 jurisdiction because (1) plaintiff bank
asserted no federal claims, and (2) an adjudication that would involve either federal issues raised
outside of the complaint or federal defenses does not give rise to jurisdiction); see also Vaden v.
Discover Bank, 556 U.S. 49, 60-61 (2009) (stating “it would undermine the clarity and simplicity
of . . . [the well-pleaded complaint] rule if federal courts were obliged to consider the contents
not only of the complaint but also of responsive pleadings”).
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