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Pauline Marzette, An Individual v. Provident Savings Bank

November 9, 2011



This matter comes before the Court on Plaintiff Pauline Marzette‟s ("Plaintiff") Motion to Remand (Doc. #5) this case to the Superior Court of California, County of El Dorado. Defendants Wells Fargo, N.A. ("Wells Fargo") and America‟s Servicing Company, named in the Complaint as American Servicing Company, ("ASC") (collectively "Defendants") oppose the motion to remand (Doc. #11).*fn1

For the reasons set forth below, the Motion to Remand is DENIED.


Plaintiff‟s Complaint (Doc. #1, Ex. A) alleges that she has a 3 mortgage loan from Wells Fargo, secured by a Deed of Trust that 4 encumbers her home. Compl., ¶¶ 1, 12. Plaintiff suffered 5 financial difficulties, causing her to fall behind in her mortgage 6 payments. Compl., ¶¶ 14-15. She alleges that she contacted ASC in 7 an attempt to seek a loan modification, but that ASC refused to 8 negotiate with her until she hired an attorney and her home was on 9 the brink of foreclosure. Compl., ¶¶ 17-21. ASC then offered her a loan modification that allowed for reduced interest only payments for five years, which she alleges she accepted under duress.

Compl., ¶¶ 21-22. Plaintiff alleges that ASC did not make clear to her that this modification did not include escrow, and she did not understand that she would need to make separate escrow payments in addition to the modified mortgage payments. Compl., ¶ 24. The Complaint alleges that Plaintiff cannot afford to make additional escrow payments, and has realized that once her five year loan modification expires, she will be in the same, or worse, position than she was before the modification. Compl., ¶ 25. Plaintiff brings state law claims for breach of contract, breach of the covenant of good faith and fair dealing, and unfair business practices under California Business and Professions Code §§ 17200, et seq.

The Notice of Removal states that removal is proper due to diversity of citizenship among Plaintiff and all Defendants. The Notice of Removal claims that Plaintiff is a citizen of California, ASC is a citizen of South Dakota, NDEX West is a citizen of Delaware and Texas, and Wells Fargo is a citizen South Dakota. The Motion for Remand argues that Wells Fargo is a citizen of South 2 Dakota and California, defeating complete diversity and requiring 3 remand to the Superior Court. The Motion for Remand also seeks 4 attorneys‟ fees and costs for removal and remand. 5

Plaintiff asserts that other courts have found Wells Fargo to be 6 a citizen of California and South Dakota. Plaintiff asks the Court 7 to take judicial notice (Doc. #6) of four cases that Plaintiff 8 contends support her argument that Wells Fargo is a citizen of 9 California and South Dakota. Defendants contend that Wells Fargo is only a citizen of South Dakota, and that courts have made this finding. Defendants also request that the Court take judicial notice (Doc. #12) of a recorded copy of their Articles of Association in South Dakota, and of a case from the Central District of California in which the court reconsidered its earlier position and found Wells Fargo to be a citizen only of South Dakota. The Court takes judicial notice as requested by both parties.


Plaintiff‟s Complaint was originally filed in the Superior Court in El Dorado County, on July 5, 2011. Wells Fargo and ASC removed the case to this Court on August 5, 2011 (Doc. #1). Defendant NDEX West joined in removal (Doc. #2). Wells Fargo and ASC note that no other defendants were served, therefore no other defendants needed to join in removal. Defendant Provident Savings Bank was dismissed from the Complaint (Doc. #10).


Jurisdiction is a threshold inquiry before the adjudication of 3 any case before a court. See Morongo Band of Mission Indians v. 4 Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 5 1988). A party may remove a state court action to federal court 6 pursuant to 28 U.S.C. § 1441. Section 1441 provides that (1) a 7 civil action brought in State court, (2) over which the district 8 court has original jurisdiction, (3) can be removed to federal 9 court embracing that state court action, (4) by the defendant or defendants in the state court action.

For removal to be proper, the district court must have original jurisdiction. Pursuant to 28 U.S.C. § 1332, district courts 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 citizens of different States..."

28 U.S.C. § 1332. The party requesting removal bears the burden of establishing that federal jurisdiction is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal." Id. (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).

Diversity must be complete, meaning that diversity is destroyed if even one plaintiff and one defendant are citizens of the same state. Tse v. Well Fargo Bank, N.A., 2011 WL 175520, *1 (N.D. Cal. Jan. 19, 2011) (internal citations omitted). 28 U.S.C. § 1332 provides that a corporation may be a citizen of two different states- the state by which is has been incorporated and the state where it has its principal place of business. Id. However, 28 U.S.C. § ...

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