Hunt v. Nationstar Mortgage, LLC

          ORDER

          RICHARD W. STORY UNITED STATES DISTRICT JUDGE.

         This case comes before the Court following its Order to Show Cause as to why this case should not be remanded for lack of subject matter jurisdiction. After reviewing the record, the Court enters the following Order.

         Background

         Plaintiff filed this case in the Superior Court of DeKalb County, Georgia on May 2, 2017. (Dkt. [3-1].) Defendants Nationstar Mortgage LLC (“Nationstar”) and Deutsche Bank National Trust Company (“Deutsche Bank”) (collectively “Defendants”) removed the case to this Court pursuant to 28 U.S.C. § 1332. (Dkt. [1].) In doing so, they pointed out that Defendant Allbertelli Law is a potential citizen of Georgia. The Court therefore ordered the parties to show cause as to why this case should not be remanded due to lack of diversity and stayed all proceedings pending the Court's ruling on the issue of subject matter jurisdiction. (Order, Dkt. [5].)

         Despite initial confusion as to the entity referred to as Allbertelli Law in the Complaint, it is now clear that Plaintiff refers to The Albertelli Firm, P.C. (“Albertelli”), a Georgia professional corporation. As Plaintiff is a citizen of Georgia, Albertelli's presence in this suit defeats diversity and deprives the Court of subject matter jurisdiction unless Defendants can show that Albertelli was fraudulently joined.

         Discussion

         I. Subject Matter Jurisdiction

         A. Legal Standard

         A defendant may remove a case from state court to federal court if the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a). A district court lacks subject matter jurisdiction over a removal action when it does not have “original jurisdiction over the plaintiff's claims.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Original jurisdiction under § 1441 arises if there is diversity of citizenship or the complaint presents a federal question. “The district court may remand a case sua sponte for lack of subject matter jurisdiction at any time.” Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir. 2009). “Federal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001). “[T]he burden is on the party who sought removal to demonstrate that federal jurisdiction exists.” Friedman v. N.Y. Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (quoting Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1281 n.5 (11th Cir. 2001)).

         B. Analysis

         “Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). It can be established “when there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant” or “when there is outright fraud in the plaintiff's pleading of jurisdictional facts” in order to defeat diversity jurisdiction. Id. The removing party has the burden of showing one of these two circumstances by clear and convincing evidence. Henderson v. Wash. Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). If fraudulent joinder has been established, the Court “must ignore the presence of the non-diverse defendant and deny any motion to remand the matter back to state court.” Id.

         To determine whether fraudulent joinder exists, the Court must look to the complaint at the time it was removed, as well as any affidavits and deposition transcripts submitted by the parties. Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). If there exists “even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Triggs, 154 F.3d at 1287 (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir. 1983)). “The plaintiff need not have a winning case against the allegedly fraudulent defendant; he need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate.” Id. The Court evaluates a plaintiff's claims under the state's pleading standards, not the standard for evaluating a motion to dismiss under Rule 12(b)(6). Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1334 (11th Cir. 2011). The Court must accept all factual allegations in the complaint as true and “construe them in the light most favorable to the plaintiff.” Henderson, 454 F.3d at 1281 (quoting Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir. 2004)).

         Looking solely at Plaintiff's claims against Albertelli, the Court concludes that the Complaint does not state a cause of action against Albertelli that would survive dismissal in state court. Under Georgia's notice pleading standard, all that is required is that “the pleading gives fair notice and states the elements of the claim plainly and succinctly.” Stillwell, 663 F.3d at 1334 (quoting Carley v. Lewis, 472 S.E.2d 109, 110-11 (Ga.Ct.App. 1996)). “[P]leadings are to be construed liberally and reasonably” and are to “serve only the purpose of giving notice to the opposing party of the general nature of the contentions of the pleader.” Racette v. Bank of Am., N.A., 733 S.E.2d 457, 465 (Ga.Ct.App. 2012) (internal quotations omitted).

         As it relates to Albertelli, the Complaint appears to allege that Albertelli lied on its application to the Secretary of State with regards to the identity and location of its registered agent. (Compl., Dkt. [3-1] ¶ 2, at 3-4.) As a result, Plaintiff was unable to serve Albertelli in its prior litigation, resulting in damages, both monetary and emotional, to Plaintiff. (Id. ¶ 3, at 4-6.) Since, Plaintiff alleges, Albertelli is unauthorized to do business in Georgia due to its application, any foreclosures it participated in were illegal. (Id. ¶ 3, at 5.) ...