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Gardner v. Nationstar Mortgage LLC

United States District Court, E.D. California

December 16, 2014

EDGAR GARDNER, III, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC; RSM&A FORECLOSURE SERVICES, LLC; & DOES 1-10, Defendants.

ORDER

TROY L. NUNLEY, District Judge.

The matter is before the Court on Plaintiff Edgar Gardner, III's ("Plaintiff") motion to remand (ECF No. 6). For the reasons discussed below, the motion to remand is DENIED.

I. Factual and Procedural Background

On May 28, 2014, Plaintiff filed the complaint in the Superior Court of Sacramento County, against Defendants Nationstar Mortgage LLC ("Nationstar") and RSM&A Foreclosure Services, LLC ("RSM&A") (collectively "Defendants"). (ECF No. 1-1.) The suit arises from a refinancing loan Plaintiff obtained on his property at 6650 18th Avenue, Sacramento, California 95820.[1] (ECF No. 1-1 ¶ 3.) Plaintiff alleges that Nationstar, a mortgage servicing company, and RSM&A, the substituted trustee under a deed of trust, committed various unlawful acts with respect to Plaintiff's loan. A notice of default on the loan and a notice of trustee's sale have been recorded. (ECF No. 1-1 ¶¶ 24, 35.) Plaintiff seeks to avoid foreclosure and also seeks pecuniary damages. (ECF No. 1-1 ¶ 38 & p. 29-30.)

On July 3, 2014, Nationstar filed a notice of removal based on diversity jurisdiction. (ECF No. 1.) RSM&A joined in Nationstar's removal motion. (ECF No. 2.) On August 4, 2014, Plaintiff filed the instant motion to remand, arguing that diversity jurisdiction is not present. (ECF No. 6.) Nationstar has submitted an opposition to the motion to remand.[2] (ECF No. 10.)

II. Standard of Review

A civil action brought in state court, over which the district court has original jurisdiction, may be removed by the defendant to federal court in the judicial district and division in which the state court action is pending. 28 U.S.C. § 1441(a). The district court has original jurisdiction over civil actions between citizens of different states in which the alleged damages exceed $75, 000. 28 U.S.C. § 1332(a)(1). The party asserting federal jurisdiction bears the burden of proving diversity. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986) (citing Resnik v. La Paz Guest Ranch, 289 F.2d 814, 819 (9th Cir. 1961)). Diversity is determined as of the time the complaint is filed and removal effected. Strotek Corp. v. Air Transp. Ass'n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002). Removal statutes are to be strictly construed against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

The amount in controversy is determined by reference to the complaint itself and includes the amount of damages in dispute, as well as attorney's fees, if authorized by statute or contract. Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005). Where the complaint does not pray for damages in a specific amount, the defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75, 000. Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997) (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)). If the amount is not facially apparent from the complaint, the Court may "require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal." Id. (citing Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335-56 (5th Cir. 1995).

Removal based on diversity requires that the citizenship of each plaintiff be diverse from the citizenship of each defendant (i.e. complete diversity). Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). For purposes of diversity, a limited liability company (LLC) is a citizen of every state in which its "owners/members" are citizens. Johnson v. Columbia Prop. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (explaining that courts are to treat LLCs like partnerships, which have the citizenships of all of their members). A corporation is a citizen of any state in which it is incorporated and any state in which it maintains its principal place of business. 28 U.S.C. § 1332(c)(1).

III. Analysis

i. Amount in controversy

Plaintiff asserts that the amount in controversy does not exceed $75, 000. (ECF No. 6 at 8-11.) However, the complaint seeks the following relief: (1) a temporary restraining order, preliminary injunction, and permanent injunction enjoining the foreclosure of the subject property; (2) an order setting aside the May 25, 2012 notice of default; (3) an order holding all defendants liable for wrongful foreclosure actions; (4) an order permanently enjoining all defendants from engaging in unfair competition; (5) civil penalties of $7, 500 per mortgage or deed of trust for multiple or repeated violations of procedural requirements; (6) compensatory and general damages in an amount according to proof at trial, but not less than $1, 000, 000, against all defendants; (7) interest, including pre-judgment and post-judgment interest; (8) attorney's fees; (9) costs of suit; and (10) any other relief the Court deems just and proper. (ECF No. 1-1 at 29-30.) Thus, it is facially apparent from the complaint that the damages sought by Plaintiff exceed the $75, 000 threshold.

Further, in "actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation." Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002) (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977)). See also Reyes v. Wells Fargo Bank, N.A. 2010 WL 2629785 at *4-5 (E.D. Cal. Apr. 23, 2010) (discussing cases finding that the object of the litigation was the property plaintiff sought to enjoin the defendant from selling at foreclosure); Garcia v. Citibank, N.A. 2010 WL 1658569 (E.D. Cal. Apr. 23, 2010) (measuring the amount in controversy according to the original mortgage loan amount). In this case, a deed of trust to the property was recorded in Sacramento County on March 14, 2007, as security for a loan refinance; the debt at that time was valued at $303, 000.00 plus interest. (ECF No. ...


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