HSBC Bank USA National Association v. Vaughan

Filing 13

OPINION AND ORDER OF REMAND Granting 3 MOTION to Remand. Case terminated on January 8, 2014(Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HSBC BANK USA NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE
HOLDERS OF MASTR REPERFORMING
LOAN TRUST 2006-2,

§
§
§
§
§
Plaintiff,
§
§
VS.
§
§
MATTHEW ANTONIO VAUGHAN AND ALL §
OCCUPANTS,
§
§
Defendant.
§

CIVIL ACTION NO. H-13-0736

OPINION AND ORDER OF REMAND
Pending before the Court in the above referenced cause, an
appeal of a forcible detainer suit removed the County Court at Law
No. 3, Harris County Texas, Cause No. 1028033, is a motion to
remand this case under 28 U.S.C. § 1447(c), filed by Plaintiff HSBC
Bank USA National Association, as Trustee for the Holders of Mastr
Reperforming Loan Trust 2006-2 and motion for attorney’s fees
(instrument #3).
Plaintiff argues that (1) the removal was untimely, (2) this
case cannot be removed based on diversity jurisdiction, and (3)
Defendants failed to meet their burden to show that federal
jurisdiction exists.

Plaintiff requests an award of attorney’s

fees and costs in the amount of $2000 because the removal was
improper.
Plaintiff correctly asserts that removal of a case from state

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court must be effected within thirty days after the defendant
receives the summons and a copy of the initial complaint/petition
or of an amended pleading from which it may first be determined that
the case is or has become removable.

28 U.S.C. § 1446(b); Murphy

Brothers v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999).
Other than a class action, no case may be removed more than one year
after it was originally filed.

28 U.S.C. § 1446(b); Caterpillar,

Inc. v. Lewis, 519 U.S. 61, 75 (1996).

Plaintiff filed this case

on January 9, 2013 and served Defendants on January 18, 2013, but
Notice of Removal was not filed until March 15, 2013.
Nix,

F. Supp. 2d

See Shaw v,

, No. Civ. A. H-98-2927, 1998 WL 894587,

at *1 (S.D. Tex. Dec. 18, 1998)(holding that “because justice of the
peace courts have exclusive original jurisdiction over forcible
entry and detainer cases,” an appeal of a forcible entry and
detainer action to county court at law is merely a continuation of
the original suit filed in justice court “).1
Second, insists Plaintiff, Defendants, as the parties seeking
to invoke the court’s diversity jurisdiction, failed to meet their
burden to establish the existence of diversity jurisdiction.
Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991)(the
party seeking to invoke jurisdiction has the burden of proving that

1

In accord, Wells Fargo Bank, N.A. v. Anderson, Civ. A. No.
3:11-CV-024-K, 2011 WL 1135121, at *2 (N.D. Tex. Mar. 28, 2011);
Deutsche Bank Nat. Trust Co. v. Rohleder, Civ. A. No. H-13-1547,
2013 WL 3884231, at *2 (S.D. Tex. July 19, 2013).
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complete diversity exists). Citizenship for diversity jurisdiction
must be “distinctly and affirmatively alleged” and the “complaint
must

specifically

allege

each

party’s

citizenship

and

these

allegations must show that the plaintiff and defendant are citizens
of different states.”

Stafford, 945 F.2d at 804-05.

For the

citizenship of corporations, under 28 U.S.C. § 1332(c) the removing
party must identify the state of incorporation and the principal
place of business.

Nadler v. American Motor Sales Corp., 764 F.2d

409, 413 (5th Cir. 1985)(law demands strict adherence to these
rules).

Failure

to

adequately

allege

jurisdiction mandates dismissal.

the

basis

for

diversity

Stafford, 945 F.2d at 805.

Any

uncertainty regarding jurisdiction must be resolved in favor of
remand.

Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir. 1986).

Defendants merely assert that Plaintiff’s main office is in Delaware
and

that

they

are

citizens

of

Texas,

but

fails

to

identify

Plaintiff’s principal place of business.
Alternatively Plaintiff claims that Defendants have failed to
establish that the amount in controversy exceeds $75,000, excluding
interests and costs.

28 U.S.C. § 1332(a)(1).

Where the plaintiff

has failed to make a specific monetary demand or it is not facially
apparent that the amount in controversy is above $75,000, the
defendant bears the burden to prove by a preponderance of summary
judgment-like evidence that the amount in controversy exceeds the
jurisdictional amount. Manguno v. Prudential Property and Cas. Ins.

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Co., 276 F.3d 720, 723 (5th Cir. 2002).

Defendants contend that the

value of the property is $77,569.00.

Plaintiff objects that (1)

Defendants provide no evidence to support this assertion and (2) in
a forcible detainer action, the amount in controversy is the value
of the right to occupy or possess the property in dispute, not the
fair market value.2

Defendants present no evidence of the value of

occupying the property, e.g., the rental value of the property for
a period of time. Ezon v. Cornwall Equities Ltd., 540 F. Supp. 885,
889 (S.D. Tex. 1982).
Because the removal was not proper, Plaintiff seeks an award
of attorney’s fees, actual expenses, and costs in the amount of
$2,000 under 28 U.S.C. § 1447(c).
Pro se Defendant Matthew Antonio Vaughan objects that the
amount in controversy meets requirements because the current fair
market value of the property is $77,569.

Defendant also reiterates

that Plaintiff is a citizen of Delaware because that is where its
main office is located, but fails to address the question of
principal place of business.
The Court agrees with Plaintiff that as a matter of law the
fair market value is not the proper measure of the amount in damages
in a forcible detainer suit; instead it is the value of the right
to occupy or possess the property, regarding which Defendant has
2

See Federal Nat. Mortg. Ass’n v. Ramirez, No. 3:13-cv2082-M, 2013 WL 6768002, at *2 (N.D. Tex. Dec. 23, 2013)(and
cases cited therein).
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failed to submit any evidence. See, e.g., Federal Nat. Mortg. Ass’n
v. Perry, No. 3:13-cv-4015-B, 2013 WL 6231556, at *2 (N.D. Tex. Dec.
2, 2013).

Moreover Defendant has not identified the state of

Plaintiff’s principal place of business. Where the plaintiff states
facts alleging only one of the two possible states of corporate
citizenship, he has not alleged enough to establish diversity
jurisdiction.

Stafford, 945 F.2d at

805, citing Leigh v. Nat’l

Aeronautics & Space Admin., 860 F.2d 652, 653 (5th Cir. 1988).
Therefore Defendant has not met his burden of proof to show the
existence of diversity jurisdiction.
An award of attorney’s fees and costs incurred as a result of
improper removal under 28 U.S.C. § 1447(c) is within the Court’s
discretion.

Miranti v. Lee, 3 F.3d 925, 928 (5th Cir. 1993).

In

determining whether to award fees and costs, the court should ask
“whether the defendant had objectively reasonable grounds to believe
the removal was legally proper.”

Valdes v. Wal-Mart Stores, Inc.,

199 F.3d 290, 293 (5th Cir. 2000). Given Defendant’s pro se status,
the Court chooses not to award Plaintiff fees and costs.
Nat. Mortg. Ass’n v. Ramirez, No. 3:13-cv-4084-M,

Federal

2013 WL 6768002,

at *3 (N.D. Tex. Dec. 23, 2013), citing Fed. Nat. Mortg. Assoc. v.
Elliott,

No.

3:10-cv-1321-L,

at

*5

(N.D.

Tex.

Nov,

16,

2010)(declining to award attorneys’ fees and costs because the Court
could not say that the removal was objectively unreasonable where
the defendant was pro se and proceeding in forma pauperis); Wells
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Fargo Bank, N.A. v. Anderson, Civ. A. No. 3:11-CV-024-K, 2011 WL
1135121, at *3 (N.D. Tex. March 28, 2011) (denying award of fees and
costs in a removed forcible detainer action by a pros se defendant
because of the facts and circumstances).
Thus the Court
ORDERS that Plaintiff’s motion to remand (#3) this case to the
County Court at Law No. 3, Harris County Texas, where it was
designated as Cause No. 1028033, is GRANTED.

The Court further

ORDERS that Plaintiff’s motion for fees and costs is DENIED.
SIGNED at Houston, Texas, this

8th

day of

January , 2014.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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