Sloan v. Carrington Mortgage Services, LLC et al

Filing 18

OPINION AND ORDER granting (7) Motion to Consolidate Cases; denying (13) Motion to Remand to State Court in case 1:17-cv-00046-JPJ-PMS; denying (10) Motion to Remand to State Court in case 1:17-cv-00047-JPJ-PMS; denying (11) Motion to Remand to St ate Court in case 1:17-cv-00048-JPJ-PMS; denying (10) Motion to Remand to State Court in case 1:17-cv-00049-JPJ-PMS; Motions to remand are denied conditioned upon CMS filing in each case within 7 days an amended notice of removal setting forth the citizenship of each of its members. Signed by Judge James P. Jones on 1/23/2018. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
ARTHUR LEE SLOAN,
Plaintiff,
v.
CARRINGTON MORTGAGE
SERVICES, LLC, ET AL.,
Defendants.
ALEXANDRIA SLOAN
Plaintiff,
v.
CARRINGTON MORTGAGE
SERVICES, LLC, ET AL.,
Defendants.
BARBARA LYNN SLOAN
Plaintiff,
v.
CARRINGTON MORTGAGE
SERVICES, LLC, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:17CV00046

Case No. 1:17CV00047

Case No. 1:17CV00048

)
)
)
)
)
)
)
)
)
)

CARL LESEUER
Plaintiff,
v.
CARRINGTON MORTGAGE
SERVICES, LLC, ET AL.,
Defendants.

Case No. 1:17CV00049

OPINION AND ORDER
Michael E. Untiedt, Marion, Virginia, and Paul V. Morrison, II, Marion,
Virginia, for Plaintiffs; John A. Nader, McGlinchey Stafford, PLLC, Washington,
D.C. for Defendant Carrington Mortgage Services, LLC, and Dean L. Robinson,
Orlans PC, Leesburg, Virginia, for Defendants Orlans PC and ALG Trustee, LLC.
These related civil actions, involving allegations of trespass and conversion,
were removed from state court. The plaintiffs have moved to remand the cases.
One of the defendants, Carrington Mortgage Services, LLC (“CMS”), has moved
to consolidate all four actions. 1 For the reasons that follow, while I find that the
Notice of Removal likely adequately alleges diversity of citizenship, I will allow
CMS to file an amended notice of removal. I also find that the cases involve
common questions of law or fact and should be consolidated.

1

CMS also moved for an extension of time to respond to the Complaints filed by
the plaintiffs. Subsequently, the defendant filed its Answer. Thus, the defendant’s
motion for an extension is denied as moot.
-2-

I.
These are four separate lawsuits filed in a Virginia state court by the
plaintiffs alleging claims of trespass and conversion of property. The actions were
timely removed to this court by the defendants based on diversity of citizenship
and amount in controversy. See 28 U.S.C. § 1332.
CMS has also moved to consolidate these actions pursuant to Rule 42(a)(2)
of the Federal Rules of Civil Procedure.

The plaintiffs do not object to

consolidation for discovery and pretrial purposes only, but object to consolidation
for trial.
The plaintiffs have moved to remand the case on the ground that the Notice
of Removal did not sufficiently identify the citizenship of each of the members of
CMS, a limited liability company.
The motions have been fully briefed, argued, and are ripe for decision.
II.
A. MOTION TO CONSOLIDATE CASES.
The Federal Rules of Civil Procedure provides that “[i]f actions before the
court involve a common question of law or fact, the court may . . . consolidate
these actions.” Fed. R. Civ. P. 42(a)(2). District courts have broad discretion
when determining whether to consolidate actions pending within the same district.
A/S J. Ludwig Mowinckles Rederi v. Tidewater Constr. Co., 559 F.2d 928, 933 (4th
-3-

Cir. 1977); Arnold v. E. Air Lines, Inc., 681 F.2d 186, 192 (4th Cir. 1982). Courts
should consider “the risk of inconsistent adjudications of common factual and legal
issues,” the burden on the parties, “available judicial resources posed by multiple
lawsuits,” the “time required to conclude multiple suits” as opposed to a single
action, and “the relative expense” to all parties. Arnold, 681 F.2d at 193.
These actions all involve the same questions of law and fact.

The

allegations arise out of the same set of events and the same two tracts of real
property, in which the plaintiffs each have an interest, either as owners or tenants.
In fact, the allegations in all four Complaints are identical to one another.
Moreover, the questions of law are the same for each case: whether the defendants
trespassed on the property and whether the defendants converted the plaintiffs’
personal property.
The plaintiffs contend that they have each suffered separate and distinct
losses of personal property, and consolidation of trials in this matter might be
prejudicial by possibility limiting the amount of punitive damages awarded each
plaintiff. I do not find this argument persuasive. Separating these matters into four
separate trials would unnecessarily waste judicial resources and time, unduly
burden the parties, and create a risk of inconsistent adjudications. Therefore, I will
grant CMS’s motion to consolidate the actions for all purposes, including trial.

-4-

B. MOTION TO REMAND.
A defendant “may remove an action on the basis of diversity of citizenship if
there is complete diversity between all named plaintiffs and all named defendants,
and no defendant is a citizen of the forum State.” Lincoln Prop. Co. v. Roche, 546
U.S. 81, 84 (2005). A defendant wishing to remove an action to federal court must
file “a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil
Procedure and containing a short and plain statement of the grounds for removal.”
28 U.S.C.A. § 1446(a).
In order to establish the citizenship of limited liability companies or other
“artificial entities other than corporations,” the court must look at the citizenship of
all members of the entity, not just controlling or managing members. Carden v.
Arkoma, 494 U.S. 185, 195-97 (1990); Gen. Tech. Applications, Inc. v. Exro Ltda.,
388 F.3d 114, 121-22 (4th Cir. 2004).
In pertinent part, the Notice of Removal filed by the defendants alleged that
3. Plaintiff admits that [he/she] is a citizen of the Commonwealth of
Virginia . . . pursuant to 28 U.S.C. § 1332.
....
5. Carrington Mortgage Services, LLC is a Delaware limited liability
company with its principal place of business in Anaheim, California.
Carrington’s sole member is Carrington Mortgage Holdings, LLC, a
Delaware limited liability company with its principal place of
business in Anaheim, California. Carrington Mortgage Holding,
LLC’s members are Carrington Holding Company, LLC, a Delaware
limited liability company with its principal place of business in
Greenwich, Connecticut, and a private individual who is not a citizen
-5-

of the Commonwealth of Virginia. Carrington Mortgage Holding
Company’s sole member is The Carrington Companies, LLC. The
Carrington Companies, LLC is a Delaware limited liability company
with its principal place of business in Greenwich, Connecticut. The
Carrington Companies, LLC’s members are three private individuals
who are not citizens of the Commonwealth of Virginia. Accordingly,
Carrington [Mortgage Services, LLC] is not a citizen of the
Commonwealth of Virginia.
Defs.’ Notice of Removal 2-3, ECF No. 1 (emphasis added).
The plaintiffs argue that Notice of Removal does not adequately allege the
citizenship of the parties because CMS does not identify the specific states of
citizenship of some of the individual members. Instead, CMS simply alleges that
such individuals are “not citizens of the Commonwealth of Virginia.” Id. In
support of their contention, the plaintiffs cite to Prindle v. Carrington Mortgage
Services, LLC, No. 3:13-CV-01349-MMH-PDB (M.D. Fla. Nov. 7, 2013) and
Miley v. Carrington Mortgage Services, LLC, No. 3:17-00143-JWD-EWD (M.D.
La. Mar. 21, 2017). In those cases, CMS was found to have insufficiently alleged
diversity in its notice of removal by either failing entirely to identify the citizenship
of its members or failing to affirmatively allege citizenship. These cases, however,
do not represent the standard set forth in the Fourth Circuit, which I am required to
follow.
While “[t]he burden of establishing federal jurisdiction is placed upon the
party seeking removal,” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148,
151 (4th Cir. 1994), traditional short averments of diversity jurisdiction are
-6-

sufficient to allege diversity jurisdiction in a notice of removal. See Ellenburg v.
Spartan Motors Chassis, Inc., 519 F.3d 192 (4th Cir. 2008).
I believe that CMS has adequately alleged in its Notice of Removal the
citizenship of each defendant’s members. Basic jurisdictional allegations, such as
those made here, are sufficient when made in a notice of removal. See Strawn v.
AT&T Mobility LLC, 530 F.3d 293, 297 (4th Cir. 2008) (stating that “a defendant
filing a notice of removal . . . need only allege federal jurisdiction with a short
plain statement – just as federal jurisdiction is pleaded in a complaint,” and citing
Ellenburg); Mattison v. Wal-Mart Stores, Inc., No. 6:10-cv-01739-JMC, 2011 WL
494395, at *3 (D.S.C. Feb. 4, 2011) (“Ellenburg simply requires a defendant’s
notice of removal to parallel the jurisdictional requirements for a complaint in
federal court.”); Wickline v. Dutch Run-Mays Draft, LLC, 606 F. Supp. 2d 633,
636 (S.D. W. Va. 2009) (“Ellenberg stands for the proposition that federal
jurisdiction is properly pled when a removing defendant alleges that the parties are
diverse and that the amount in controversy exceeds the jurisdictional limit.”).
In any event, CMS represents that it is able to file an amended notice of
removal setting forth the citizenship of each of its members. I will allow it to do
so, and deny the Motion to Remand, conditioned upon the filing of such an
amended notice of removal.

-7-

III.
For the foregoing reasons, it is hereby ORDERED that:
1.

The Motion to Consolidate Pursuant to Fed. R. Civ. P. 42(a), ECF No.

7, is GRANTED and the four actions are consolidated for all purposes.
2.

The plaintiffs’ motions to remand in each case are DENIED,

conditioned upon CMS filing in each case within 7 days an amended notice of
removal setting forth the citizenship of each of its members.

ENTER: January 23, 2018
/s/ James P. Jones
United States District Judge

-8-