Nicholson v. The Bank of New York Mellon

Filing 11

Memorandum Opinion and Order...this action remanded to the state court from which it was removed. cy to 342nd Judicial District Tarrant Co Tx (Ordered by Judge John McBryde on 7/12/2013) (wrb)

U.S. DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

COU T
IN THE UNITED STATES DISTRI
NORTHERN DISTRICT OF TE AS
FORT WORTH DIVISION

FILED

JLt l 2 2013

1

§

Plaintiff,

CLERK. U.S.DISTRICTCvcitl

§

HARRIET NICHOLSON,

Deputy

BY~~~~~~~~

§
§

vs.

§

NO. 4:13-CV-542-A

§

THE BANK OF NEW YORK MELLON
and MELANIE D. COWAN,

§
§
§

Defendants.

§

MEMORANDUM OPINION
and
ORDER
Now before the court is the notice of removal filed in the
above-captioned action by defendant The Bank of New York Mellon.
Defendant has alleged diversity of citizenship under 28 U.S.C.
1332 and federal question under 28 U.S.C.
removal.

§

§

1331 as the bases for

Having considered the notice of removal and the second

amended state court petition of plaintiff, Harriet Nicholson,
attached thereto, the court concludes that defendant has failed
to sufficiently allege that this court has subject matter
jurisdiction, and that the case should be remanded to the state
court from which it was removed.
I.

Background
Plaintiff initiated this action by filing her original
petition against defendants on November 5, 2012, in the District

Court of Tarrant County, Texas, 342nd Judicial District, as Cause
No. 342-262692-12.

Defendant has removed this action on two

occasions, in No. 4:13-CV-37-A and No. 4:13-CV-310-Y, both of
which resulted in remand to state court.

Defendant alleges that

the court has subject matter jurisdiction because (1) there is
complete diversity of citizenship between plaintiff and
defendant, and an amount in controversy exceeding the sum or
value of $75,000.00, exclusive of interest and costs, and (2)
plaintiff seeks relief under federal statutes and regulations.
II.
Basic Principles
Under 28

u.s.c.

§

1441(a) a defendant may remove to federal

court any state court action of which the federal district courts
would have original jurisdiction.

"The removing party bears the

burden of showing that federal subject matter jurisdiction exists
and that removal was proper."
Ins. Co., 276 F.3d 720, 723

Manguno v. Prudential Prop. & Cas.

(5th Cir. 2002).

"Moreover, because

the effect of removal is to deprive the state court of an action
properly before it, removal raises significant federalism
concerns, which mandate strict construction of the removal

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statute." 2

Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d

362, 365-66 (5th Cir. 1995).

Any doubts about whether removal

jurisdiction is proper must therefore be resolved against the
exercise of federal jurisdiction.

Acuna v. Brown & Root Inc.,

200 F.3d 335, 339 (5th Cir. 2000).
III.
Inadequacies in Defendant's Jurisdictional Showing
A.

Diversity Jurisdiction
For the court to have subject matter jurisdiction over this

action pursuant to

§

1332, there must be complete diversity of

citizenship and an amount in controversy in excess of $75,000.00,
excluding interest and costs.

As the removing party, defendant

bears the burden of establishing that the jurisdictional
requirements are satisfied.

To determine the amount in

controversy, the court ordinarily looks to the plaintiff's state
court petition.

Manguno, 276 F.3d at 723.

If it is not facially

apparent from the petition that the amount in controversy exceeds
the required amount, the removing party must set forth summary

2

The removal statute, 28 U.S.C. § 1441(a) provides, in pertinent part, that:

[A]ny civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the defendants, to
the district court of the United States for the district and division embracing the place
where such action is pending.

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judgment-type evidence, either in the notice of removal or in an
affidavit, showing that the amount in controversy is, more likely
than not, greater than $75,000.00.

Id.; Allen v. R & H Oil & Gas

Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

The amount in

controversy is measured from the perspective of the plaintiff.
See Garcia v. Koch Oil Co. of Texas Inc., 351 F.3d 636, 640 n.4
(5th Cir. 2003).
First, defendant argues that diversity of citizenship is met
even though plaintiff, who is a citizen of Texas, named as a
defendant Melanie D. Cowan ("Cowan"), who is also a citizen of
Texas, because Cowan was improperly joined to defeat diversity
jurisdiction.

The court, however, need not resolve whether Cowan

was properly joined because defendant has failed to provide any
information that would enable the court to find that the amount
of controversy exceeds the sum or value of $75,000.00, excluding
interest and costs, as explained below.
Second, defendant argues that the amount in controversy
requirement is met because plaintiff seeks declaratory relief to
bar defendant from taking possession of her property, and when
declaratory relief is sought,

"the amount in controversy is

measured by the value of the object of the litigation."
of Removal, at 4.

Notice

Defendant contends that when a mortgagor seeks

to protect the subject property, the fair market value is the
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appropriate measure of the amount in controversy.

Id.

According

to defendant, the value of plaintiff's property is at least
$133,400.00, establishing the amount in controversy.
The underlying state court action is an eviction suit, and
plaintiff is seeking "to prevent wrongful post-foreclosure
eviction and rescind a foreclosure sale."
2.

Pl. 's 2d Arn. Pet. at

The court is not persuaded by the argument that the above

figure supplies the basis for plaintiff's interest in the
property, especially given that plaintiff has not pleaded how
much equity she has in the property.

Defendant does not cite to,

nor can the court discern, any such statement in the petition to
support a finding that the value of the property is the amount in
controversy.

That is, for example, defendant's attribution of

the $133,400.00 figure as damages is an act of its own doing--not
plaintiff's.

To the extent that these statements suggest that

the property value is the proper measure of the amount in
controversy in this action, the court rejects that argurnent. 3
Therefore, the court concludes that defendant has not properly

3

The court is familiar with the unpublished Fifth Circuit opinion, Nationstar Mortg. LLC v.
Knox, 351 F. App'x 844 (5th Cir. 2009). The pertinent portion ofNationstar, in turn, relies on Waller v.
Prof! Ins. Corp., 296 F.2d 545, 547-48 (5th Cir. 1961). This court has previously explained its reasoning
for finding Waller inapposite to determining the amount in controversy in cases such as the instant
action. See Ballew v. America's Servicing Co., No. 4:1l-CV-030-A,2011 WL 880135 (N.D. Tex. Mar.
14, 2011).

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alleged that this court has diversity jurisdiction, and turns to
defendant's contention that federal question jurisdiction exists.
B.

Federal Question Jurisdiction
Under

§

1331, this court has "original jurisdiction of all

civil actions arising under the Constitution, laws, or treaties
of the United States."

28 U.S.C.

§

1331.

The complaint must

establish that "federal law creates the cause of action or that
the plaintiff's right to relief necessarily depends on resolution
of a substantial question of federal law."

Empire Healthchoice

Assurance, Inc. v. Mcveigh, 547 U.S. 677, 690
Allstate Ins. Co., 589 F.3d 168, 172

(2006); Borden v.

(5th Cir. 2009).

Further,

mortgage foreclosure actions are "typically governed by private
contract and state law," not federal law.

See Goffney v. Bank of

Am., 897 F. Supp.2d 520 (S.D. Tex. 2012); Buis v. Wells Fargo
Bank, N.A., 401 F. Supp.2d 612

(N.D. Tex. 2005).

Defendant alleges that plaintiff's second amended petition
alleges violations of the Fair Debt Collection Practices Act
("FDCPA") and U.S. Department of Housing and Urban Development
("HUD") regulations, and seeks relief under the Real Estate
Settlement Procedures Act ("RESPA"); however, the court finds
that the brief references in the second amended petition to those
federal statutes and regulations do not actually constitute
causes of action and do not present any federal question
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sufficient to invoke this court's jurisdiction.
401 F. Supp.2d at 616-18

See, ~' Buis,

(allegations that defendant violated HUD

regulations in a foreclosure action not sufficient for federal
question jurisdiction)

(citing additional cases); Nicholson v.

Bank of New York Mellon, No. 4:13-CV-310-Y, at *2
7,

2013)

(N.D. Tex. May

(rejecting previous, nearly identical arguments made by

defendant based on same portions of plaintiff's complaint in
defendant's most recent attempt to remove this action from state
court) .

Therefore, defendant has failed to carry its burden of

establishing that federal question jurisdiction exists in this
case.
IV.
Order
Therefore,
The court ORDERS that this action be, and is hereby,
remanded to the state court
SIGNED July 12, 2013.

t Judge

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