Marshall County Board of County Commissioners v. Homesales, Inc. et al
Filing
39
OPINION AND ORDER by Judge Frank H. Seay, remanding case to the District Court of Marshall County, State of Oklahoma (terminates case) (trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARSHALL COUNTY, OKLAHOMA, COUNTY )
COMMISSIONERS ex rel, MARSHALL
)
COUNTY OKLAHOMA, et. al.,
)
)
Plaintiffs, )
)
v.
) No. CIV-12-47-FHS
)
HOMESALES, INC., et al.,
)
)
Defendants. )
ORDER
Before the court for its consideration is Plaintiffs’ Motion
to Remand and Brief in Support (Doc. #15).
In this motion,
plaintiffs allege this case was improperly removed to this court
by defendants.
present.
Plaintiffs argue that complete diversity is not
Defendants responded there is complete diversity
because the defendant Jason Howell was fraudulently joined to
destroy diversity.
The court now turns to the merits of the
motion.
Plaintiffs filed their lawsuit on January 3, 2012, in
Marshall County, Oklahoma. Defendants removed this action to the
United Stated District Court for the Eastern District of Oklahoma
on February 1, 2012.
Plaintiffs again filed a Motion to Remand
arguing that diversity was lacking.
Defendants argue that there
was diversity because the defendant Jason Howell was fraudulently
joined.
In the Motion to Remand, Plaintiffs allege there is not
diversity as required by 28 U.S.C. Sec. 1332.
1332 provides:
28 U.S.C. Sec.
(a) The district courts shall have original
jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is
between–
(1) citizens of different States;
It is admitted defendant Jason Howell is an Oklahoma
resident.
Plaintiffs are also Oklahoma residents. Thus, on the
face of the Complaint there appears to be no diversity
jurisdiction.
Defendants argue that defendant Howell is an
improperly joined defendant whose sole purpose for being named in
this lawsuit is to destroy diversity jurisdiction.
Defendants
argue there is no actionable claim against defendant Howell.
Plaintiffs argue that defendant Howell could be liable
because he participated in a conspiracy to file documents without
paying the appropriate taxes.
Plaintiffs contend the act of
filing deeds on which documentary stamp taxes have not been paid,
or are statutorily exempt, is unlawful.
The law makes no
exception allowing attorneys to file deeds for which documentary
stamps have not been paid or exempted.
Plaintiffs contend that
agents of the defendants including defendant Howell, filed such
deeds unlawfully.
Plaintiffs claim defendant Howell and others
conspired with other defendants to wilfully make application to
reduce a tax obligation and willfully misstated material matters
to avoid the payment of documentary stamp taxes when he filed
and/or caused the faulty deeds to be filed.
The party asserting fraudulent joinder bears a heavy burden.
In Montano v. Allstate Indemnity, 211 F.3d 1278 (Table), (10th
Cir. 2000) the Tenth Circuit Court of Appeals stated:\
The case law places a heavy burden on the party
asserting fraudulent joinder. A representative
example states: To prove their allegation of
fraudulent joinder [the removing parties] must
demonstrate that there is no possibility that
[plaintiff] would be able to establish a cause of
action against [the joined party] in state court.
In evaluating fraudulent joinder claims, we must
initially resolve all disputed questions of fact
and all ambiguities in the controlling law in
favor of the non-removing party. We are then to
determine whether that party has any possibility
of recovery against the party whose joinder is
questioned. (Internal citations omitted)
It has long been the law that the court can “pierce the
pleadings, consider the entire record, and determine the basis of
joinder by any means available.” Dodd v. Fawcett Publishing Inc.,
329 F.2d 82, 85 (10th Cir. 1964). In doing so the court must
determine whether there is a reasonable basis to believe the
plaintiff might succeed in at least one claim against the nondiverse defendants.
Badon v. RJR Nabisco, Inc., 224 F.3d 382,
393 (5th Cir. 2000).
“A ‘reasonable basis’ means just that the
claim need not be a sure thing, but it must have a basis in the
alleged facts and applicable law.” Nerad v. AstraZeneca
Pharmaceutical, Inc., 203 Fed. Appx. 911, 913 (10th Cir. 2006).
Plaintiffs have alleged defendant Howell conspired with other
defendants to file documents without paying the appropriate
required taxes.
Under Oklahoma law, a civil conspiracy consists
of a combination of two or more persons to do an unlawful act, or
to do a lawful act by unlawful means.
Edwards v. Urice, 220 P.3d
1145, 1152 (Okla. Civ. App. Div. 1, 2008).
The court finds
plaintiffs have submitted sufficient facts to establish they may
have an actionable conspiracy claim against defendant Howell.
Defendant Howell in his affidavit admits that he prepared
documents for his clients for use in mortgage foreclosure
proceedings.
Plaintiffs have alleged that he, along with other
people, caused those deeds to be filed without paying the
appropriate taxes.
The court finds there is a reasonable basis
to believe plaintiffs will prevail on the conspiracy claims
against defendants.
Badon
at 393.
Defendants had a heavy
burden to establish that the plaintiffs could not establish a
cause of action against the defendants. Montano v. Allstate
Indemnity, 211 F.3d 1278 (Table), (10th Cir. 2000).
to meet this burden.
They failed
Accordingly, the court finds the defendant
Howell was not fraudulently joined. As a result, no diversity of
citizenship between the parties exists.
Accordingly, the
Plaintiffs’ Motion to Remand is GRANTED.
IT IS SO ORDERED this 16th day of April, 2012.
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