United States District Court, D. New Mexico
U.S. BANK NATIONAL ASSOCIATION, as Trustee for CHASE MORTGAGE FINANCE CORPORATION MULTICLASS MORTGAGE PASS-THROUGH CERTIFICATES CHASEFLEX TRUST SERIES 2006-1, Plaintiff,
FIRST MORGAN and UNKNOWN TENANTS, Defendants.
Dylan O'Reilly Holly Agajanian Miller Stratvert, P.A.
Santa Fe, New Mexico Attorneys for the Plaintiff
ORDER OF REMAND
MATTER comes before the Court on the Magistrate
Judge's Order to Show Cause, filed September 20, 2017
(Doc. 13)(“Show Cause Order”). On March 27, 2017,
Plaintiff U.S. Bank National Association, as Trustee for
Chase Mortgage Finance Corporation Multiclass Mortgage
Pass-Through Certificates Chaseflex Trust Series 2006-1
(“U.S. Bank”) filed its Complaint for Quiet Title
to Real Property, filed March 27, 2017, in U.S. Bank
Nat'l Ass'n v. First Morgan, D-101-CV-2017-99837
(First Judicial District Court, County of Santa Fe, State of
New Mexico), in file at July 28, 2017 (Doc. 1 at
5-8)(“Complaint”). The Complaint seeks to quiet
U.S. Bank's title to property “commonly described
as 830 Paseo de Don Carlos, Santa Fe, NM 87501.”
Complaint at 2. On July 28, 2017, “J Brown Successor to
First Morgan” removed the case to federal court. Notice
for Removal, filed July 28, 2017 (Doc. 1 at
1-3)(“Notice of Removal”).
that the Notice of Removal is insufficient to demonstrate
that the Court has subject-matter jurisdiction, the Honorable
Kirtan Khalsa, United States Magistrate Judge, issued the
Show Cause Order on September 20, 2017, which directs First
Morgan, if it is a business entity, to obtain counsel
authorized to practice law before the Court, to cause such
counsel to formally enter an appearance, and to show cause in
writing why the Court should not remand the Case for lack of
subject-matter jurisdiction. See Show Cause Order at
4. In the alternative where First Morgan is a natural person
asserting his or her own legal rights pro se, the Show Cause
Order directs First Morgan to enter an appearance pro se and
to respond to the Show Cause Order. See Show Cause
Order at 4. In either alternative, the Show Cause Order
required First Morgan to respond by October 3, 2017.
See Show Cause Order at 4.
October 2, 2017, Defendant filed a Notice of Affidavit by
James Brown, filed October 2, 2017 (Doc. 15)(“Brown
Aff.”). The Court liberally construes it as First
Morgan's response to the Show Cause Order. For the
reasons that follow, the Brown Aff. does not demonstrate that
the Court has subject-matter jurisdiction. Accordingly, the
Court will remand the case to the state court in which U.S
Bank originally filed its Complaint.
REGARDING SUBJECT-MATTER JURISDICTION
It is a
well-known principle that courts may examine their
subject-matter jurisdiction at any time in the proceedings.
See Tuck v. United Services Auto Ass'n, 859 F.2d
842, 844 (10th Cir. 1988). See also 28 U.S.C. §
1447(c)(“If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”). Federal
removal jurisdiction is statutory in nature and must be
strictly construed. See Shamrock Oil & Gas v.
Sheets, 313 U.S. 100, 108 (1941). A removing party has
the burden of demonstrating the existence of federal
jurisdiction by a preponderance of the evidence. See
Karnes v. Boeing Co., 335 F.3d 1189, 1193-94 (10th Cir.
Brown successor to First Morgan” removed this case to
federal court on the basis of diversity jurisdiction.
See Notice of Removal at 3. 28 U.S.C. § 1332
sets forth the statutory authority for diversity jurisdiction
in federal court, and provides, in relevant part, that
“[t]he district courts shall 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(a)(1)-(2).
the amount in controversy, a defendant's notice of
removal must include a good-faith, plausible allegation that
the amount in controversy exceeds the jurisdictional
threshold. See Dart Cherokee Basin Operating Co. v.
Owens, 135 S.Ct. 547, 553-54 (2014). In other words, the
“defendant must affirmatively establish jurisdiction by
proving jurisdictional facts that ma[k]e it
possible that $75, 000 [is] in play.”
McPhail v. Deere & Co., 529 F.3d 947, 955 (10th
Cir. 2008)(emphasis in original). In considering whether the
amount-in-controversy requirement has been satisfied, courts
may rely on their “judicial experience and common
sense[.]” Roe v. Michelin N.A., Inc., 613 F.3d
1058, 1062 (11th Cir. 2010). In regard to the
diversity-of-citizenship requirement, plaintiffs must, as a
general rule, specifically allege the citizenship of each
defendant. See 13B Charles A. Wright, Arthur R.
Miller, Edward H. Cooper, Federal Practice and Procedure
§ 3611, at 517-18 (2d ed. 1984). A negative statement
that a party is not a citizen of a particular state is not
sufficient. See Wright & Miller, supra
§ 3611, at 517-18.
Court is uncertain what to make of Brown's assertion that
he is the “Successor to First Morgan, ” Notice of
Removal at 1, but the Court construes it as an assertion that
Brown somehow acquired First Morgan's property interest
such that First Morgan is only a nominal defendant while
Brown is “the real party defendant in interest.”
La Russo v. St. George's University School of
Medicine, 747 F.3d 90, 96-97 (2d Cir. 2014)(holding that
a real party defendant in interest is entitled to remove a
case to federal court). Under this construction, Brown
represents himself pro se, so the Court need not determine
whether Brown is eligible to represent First Morgan. The
Court concludes that Brown has failed to demonstrate that the
Court has subject-matter jurisdiction, so the Court will
remand the case.
THE COURT DOES NOT HAVE DIVERSITY
Notice of Removal, Brown asserts, without more, an amount in
controversy of $54, 058, 180.00. See Notice of
Removal at 3. Brown also asserts that the “Defendants
are not a resident of New Mexico” and that the
“Defendants are diverse, ” see Notice of
Removal at 3, because none of the “‘parties in
interest properly joined and served as defendants is a
citizen of the State in which such action is brought,
'” Notice of Removal at 3 n.2 (quoting 28 U.S.C.
§ 1441(b)(2)). Because $54, 058, 180.00, in the context
of this action to quiet title to a single lot in a
subdivision in Santa Fe, New Mexico, did not, in Magistrate
Judge Khalsa's judicial experience and common sense,
appear to be a good-faith, plausible estimate of the amount
in controversy, and she gave Brown the opportunity to provide
evidence establishing his estimate's validity.
See Show Cause Order at 2-3. See also Dart
Cherokee Basin Operating Co. v. Owens, 135 S.Ct. at 554
(“Evidence establishing the amount is required by
§ 1446(c)(2)(B) only when the plaintiff contests, or the
court questions, the defendant's allegation.”).
Because Brown's assertions regarding diversity are
legally insufficient, Magistrate Judge Khalsa gave Brown an
opportunity to remediate that deficiency by responding to the
Show Cause Order. See Show Cause Order at 3.
Brown Aff. does not address Magistrate Judge Khalsa's
jurisdictional concerns. Instead, it contains a number of
queries and statements that are irrelevant to the Court's
subject- matter jurisdiction, see, e.g., Brown Aff.
at 2 (“is it not true, i believe, whomever has a vested
interest in said case should reply post haste so it can be
determined who or what is before this Court?”);
id. at 3 (“i James, a man, believe my claim is
before the Court. i James, a man, intend to do no harm. i
James, a man, intend not to trespass. i James, a man, take
said Order [to Show Cause] under advisement.”), and a
“verified” statement that “James”
“intend[s] to amend, ” Brown Aff. at 1.
Consequently, the Court agrees with Magistrate Judge Khalsa
and concludes that Brown's assertion that his claim is
worth $54, 058, 180.00 is implausible such that Brown has not
included a good-faith, plausible allegation that the case
satisfies diversity-jurisdiction's amount-in-controversy
addition to not properly alleging the requisite amount in
controversy, Brown does not properly allege diversity of
citizenship. Brown and U.S. Bank may well be “citizens
of different States, ” 28 U.S.C. § 1332(a)(1), but
nothing in the record indicates that is so. The information
in the Complaint does not allow the Court to determine the
citizenship of either U.S. Bank or First Morgan, and the
Complaint does not mention Brown at all. The Notice of
Removal contains only an allegation that “Defendants
are not a resident of New Mexico, ” Notice of Removal
at 3, and an allegation that __ because 28 U.S.C. §
1441's in-state-defendant rule is satisfied __ the
parties are diverse, see Notice of Removal at 3
& n.2. The Brown Aff. provides no relevant information
regarding Brown's, U.S. ...