Silver Gryphon, L.L.C. A Texas Limited Liability Company v. The Bank of New York Mellon f/k/a The Bank of New York as Trustee for the Certificateholders of the CWABS, Inc. Asset Backed Certificates 2004-13 et al

Filing 34

ORDER DENYING 30 MOTION to Reinstate the case.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SILVER GRYPHON , L.L.C.,
Plaintiff,
v.
THE BANK OF NEW YORK MELLON , et al.,
Defendants.

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CIVIL ACTION H-14-2148

ORDER
Pending before the court is defendant’s motion to reinstate. Dkt. 30. After considering the
motion, response, reply, and applicable law, the court is of the opinion that the motion should be
DENIED.
This case arises from plaintiff’s purchase, as a junior lienholder, of property located in
Houston, Texas at a Trustee’s Sale conducted by a homeowner’s association when the original
borrowers defaulted on their loan. Dkt. 1-1 at 2. Defendants removed this action on July 28, 2014
on the basis of diversity jurisdiction. Dkt. 1. On December 8, 2014, the court granted plaintiff’s
motion to remand, finding that the joinder of Carl Meyers, the only non-diverse defendant, was not
fraudulent. Dkt. 29. Meyers was dismissed from the state court case on February 2, 2015, and BNY
now moves to reinstate the case based on complete diversity.
When the dismissal of a party creates complete diversity, a case is only removable if the
dismissal of the non-diverse defendant was not contrary to the desire of the plaintiff. Weems v. Louis
Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967). Where the dismissal was contrary to the desire
of the plaintiff, the case cannot be removed. Id. The “voluntary-involuntary” rule “prevents removal
of those cases in which the issue of the resident defendant’s dismissal has not been finally

determined in the state courts” and “avoids the duplication and expense which would result if a
resident defendant was dismissed on an appealable ground, the nonresident was permitted to remove,
and the plaintiff then obtained a reversal of the dismissal in the state appellate courts.” Id. at 546.
Myers was dismissed from the state court action after plaintiff failed to respond to his
verified denial and motion to dismiss. Dkt. 33 at 4. Defendant argues that plaintiff’s failure to
respond was a voluntary dismissal of Meyers and indicates a concession that Myers was fraudulently
a joined. Id. Plaintiff responds that it is currently disputing the validity of the state court order of
dismissal based on an argument of inadequate notice. Dkt. 32 at 2. Since plaintiff is fighting the
dismissal in state court, the dismissal of Meyers was contrary to the desire of the plaintiff, and the
action is not removable. Accordingly, the motion to reinstate (Dkt. 30) is DENIED.
It is so ORDERED.
Signed at Houston, Texas on April 6, 2014.

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Gray H. Miller
United States District Judge

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