Nationstar Mortgage LLC v. Cruse et al

Filing 16

OPINION AND ORDER denying 9 Motion to Remand to State Court. Signed by Judge James L Graham on 8/7/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Nationstar Mortgage LLC,
Plaintiff,
v.

Case No. 2:14-cv-383

Kari D. Cruse, et al.,
Defendants.
OPINION AND ORDER
This is an foreclosure action brought by plaintiff Nationstar
Mortgage LLC, the holder of a promissory note and mortgage deed
allegedly executed by defendant Kari D. Cruse.

Also named as

defendants are a John Doe unknown spouse and the treasurer of Ross
County, Ohio.

The face of the complaint contains a Texas address

for the plaintiff, and addresses in Chillicothe, Ohio, for the
defendants.

The complaint states that plaintiff seeks to recover

$71,669.62, plus interest at a rate of two percent per annum from
October 1, 2013, and deferred principal in the amount of $32,145.93
and late charges.

This action was originally filed on March 27,

2014, in the Court of Common Pleas of Ross County, Ohio.

On April

28, 2014, Cruse filed a notice of removal of the action to this
court, citing diversity of citizenship as the basis for federal
removal jurisdiction under 28 U.S.C. §1441(b).

On July 1, 2014,

plaintiff filed a motion to remand for lack of subject matter
jurisdiction.

This motion is now before the court for a ruling.

The only basis for removal identified in Cruse’s notice of
removal is diversity of citizenship.

Under 28 U.S.C. §1332(a)(1),

federal district courts have original jurisdiction of all civil
actions between citizens of different states where the amount in

controversy exceeds $75,000.

The face of the complaint suggests

that there is complete diversity of citizenship in this case,
because the plaintiff’s address is in Texas, whereas all defendants
have Ohio addresses.

The complaint also states that the amount in

controversy is greater than $75,000 (a notice attached to the
amended complaint filed on May 22, 2014, indicates that the amount
owed as of March 10, 2014, was $105,295.20).

See Doc. 4, p. 5.

Plaintiff does not contest that the requirements for diversity
jurisdiction have been satisfied in this case.

Rather, plaintiff

argues that removal was improper based on 28 U.S.C. §1441(b)(2),
which

provides

that

an

action

otherwise

removable

based

on

diversity of citizenship “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.”

Plaintiff argues

that §1441(b)(2) precluded Cruse from filing a notice of removal
because Cruse, named as a defendant, is a citizen of Ohio, where
this action was brought.
In response, Cruse correctly notes that the Sixth Circuit has
held that technical defects in the removal procedure must be raised
by a party within thirty days of removal or they are waived.

See

Loftis v. United Parcel Service, Inc., 342 F.3d 509, 516-17 (6th
Cir. 2003)(citing 28 U.S.C. §1447(c)(“[a] motion to remand the case
on the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of the
notice of removal”)); see also Page v. City of Southfield, 45 F.3d
128, 133 (6th Cir. 1995)(under §1447(c), a motion to remand the
case on the basis of a procedural defect must be made within thirty
days after the filing of a notice of removal).

2

A defect in removal

under §1441(b)(2) “is non-jurisdictional and must be raised by the
plaintiff in a motion to remand” or the objection is waived.
Southwell v. Summit View of Farragut, LLC, 494 F.App’x 508, 511 n.
2 (6th Cir. 2012)(citing RFF Family Partnership, LP v. Wasserman,
316

F.App’x

410,

411-12

(6th

Cir.

2009)(the

forum

defendant

provision is a procedural removal requirement that is waived if it
is not raised by a timely motion to remand) and Plastic Moldings
Corp. v. Park Sherman Co., 606 F.2d 117, 119 n. 1 (6th Cir. 1979)).
In this case, plaintiff’s motion to remand was filed beyond the
thirty-day

time

limit

specified

in

§1447(c),

and

therefore

plaintiff has waived any objection to a defect in removal under the
forum defendant provision, §1441(b)(2).
Plaintiff also contends that this action should be remanded
based on a lack of subject matter jurisdiction, noting that
§1447(c) specifically exempts a motion to remand due to lack of
subject matter jurisdiction from the thirty-day requirement.
Plaintiff asserts that, to the extent that Cruse sought to remove
this action based upon her intent to assert a defense grounded in
federal law, removal on this basis was improper.

It is correct

that federal question jurisdiction under 28 U.S.C. §1331 is a
proper

ground

presented

on

complaint.”

for
the

removal
face

of

“only
the

when

a

federal

plaintiff’s

question

properly

is

pleaded

Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987); see also Chase Manhattan Mortgage Corp. v. Smith, 507 F.3d
910, 914-5 (6th Cir. 2007)(foreclosure action relying exclusively
upon state law did not create a federal law cause of action
allowing removal; federal counterclaims and defenses are also
inadequate to confer federal jurisdiction).

3

However, Cruse’s

notice of removal does not mention federal question jurisdiction
under §1331 as a basis for removal, nor has Cruse asserted a
counterclaim or defense based on federal law in her answer to the
amended

complaint.

See

Doc.

8.

By

erecting

this

purely

hypothetical ground for removal as a straw man and then knocking it
down, plaintiff attempts to portray its motion to remand as being
based

on

questions

of

subject

matter

jurisdiction,

when,

in

actuality, the only objection to removal relevant to this case is
one based on a procedural violation subject to the time limits of
§1447(c).
The exclusive basis for removal provided in the notice of
removal is original jurisdiction under §1332 based on diversity of
citizenship.

See Doc. 1, ¶ 3.

As stated above, the complaint

indicates that the requirements for subject matter jurisdiction
under §1332(a)(1) based on diversity of citizenship have been
satisfied.

Plaintiff’s objection to removal based on a violation

of §1441(b)(2) concerns a procedural violation, not an issue of
subject matter jurisdiction which could be asserted at any time
prior to the entry of judgment.
n. 2.

See Southwell, 494 F.App’x at 511

Because plaintiff failed to file a timely motion to remand

based on this §1441(b)(2) procedural violation, that violation has
been waived.
For the foregoing reasons, plaintiff’s motion to remand for
lack of subject matter jurisdiction (Doc. 9) is denied.

Date: August 7, 2014

s/James L. Graham
James L. Graham
United States District Judge

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