IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 24, 2012
LADANA LUELLEN, PLAINTIFF,
WELLS FARGO BANK,
Plaintiff filed her complaint in Sacramento County Superior Court on April 2, 2012, alleging four causes of action for violation of California state and common law. (Not. of Removal, ECF 1.) Defendant removed the action to this court on April 26, 2012 citing diversity as the court's basis for jurisdiction. (Id.) Defendant contends it is a citizen of only South Dakota, the state where its main office is located. (Id. at 3.)
Lack of subject matter jurisdiction may be challenged by either party or raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1983). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). The federal removal statute, 28 U.S.C. § 1441(a), provides: "[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." This court has original jurisdiction over cases in which the amount in controversy exceeds $75,000 and the parties are completely diverse. The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). There is a "strong presumption" against removal jurisdiction, which "means that the defendant always has the burden of establishing that removal is proper." Id.
Plaintiff is a citizen of California. Plaintiff names fifty (50) Doe defendants. "The citizenship of fictitious defendants is disregarded for removal purposes . . . ." Soliman v. Philip Morris, Inc., 311 F.3d 966, 971 (9th Cir. 2002). Under 28 U.S.C. § 1348, national banking associations shall "be deemed citizens of the States in which they are respectively located." Relying on Wachovia Bank v. Schmidt, 546 U.S. 303 (2006), defendant contends it is only "located" in South Dakota, where its main office is located. Whether a national bank is "located" in the state where it maintains its principal place of business is an issue that has led to splits both within the circuit and between circuits, which the Ninth Circuit has declined to address. See Peralta v. Countrywide Home Loans, Inc., 375 Fed. Appx. 784, 785 (9th Cir. 2010). This court finds persuasive the reasoning of Taheny v. Wells Fargo Bank, N.A., which held that in light of Ninth Circuit case law, Wells Fargo is a citizen of California. See No. CIV. S-10-2123 LKK/EFB, 2012 U.S. Dist. LEXIS 47195 (E.D. Cal. Apr. 3, 2012) (confirming prior decision in Guinto v. Wells Fargo Bank, No. CIV S-11-372 LKK/GGH, 2011 U.S. Dist. LEXIS 114986 (E.D. Cal. Oct. 5, 2011), and finding that in the Ninth Circuit a national bank is a citizen of the state where it maintains its principal place of business); see also Humburg v. Wells Fargo Bank, N.A., CIV No. S-12- 0999 KJM-CKD, 2012 U.S. Dist. LEXIS 123842, at *4 nn. 2 and 3 (E.D. Cal. Aug. 30, 2012). As a result, complete diversity is absent and this court lacks jurisdiction.
Accordingly, this action is hereby REMANDED to the Sacramento County Superior Court. Defendant's motion to dismiss (ECF 11) and motion to strike (ECF 12) are denied as moot. This case is CLOSED.
IT IS SO ORDERED.
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