United States District Court, D. New Mexico
UNIVEST CAPITAL, INC., as assignee of TrailPods Acceptance Corporation, Plaintiff,
MOONEY MOVERS, INC., GUILLERMO BACA, individually and KATHERINE BACA, individually. Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION TO REMAND
matter is before the Court on Plaintiffs Motion to Remand to
the Circuit Court of the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida and to Dismiss Counterclaims under
Fed.R.Civ.P. 12(b)(2) & (b)(5), or in the alternative, to
Transfer Venue to the United States District Court for the
Southern District of Florida under 28 U.S.C. § 1406.
[Doc. 10] Having considered the motion, law, and briefs, the
Court concludes that the motion to remand should be granted.
Guillermo Baca and Katherine Baca are the directors of
Defendant Mooney Movers, Inc., a New Mexico corporation that
did business in Florida.
in November 2014, while in Florida, TrailPods Acceptance and
Defendants entered into a lease whereby Trailpods would rent
mobile storage units or "storage pods" to
Defendants. Shortly after, TrailPods assigned the lease to
Univest Capital, so Defendants made further rental payments
to Univest. Defendants steadily did so until July 2017, but
then after that stopped making payments. So in November 2017
Univest sued Defendants for past due payments and for the
accelerated balance due. Univest filed that action in Florida
state court because in addition to the lease being governed
by Florida law, it was formed, performed, and allegedly
breached in that state.
Defendants resided in and transacted business in Florida at
the time they allegedly breached the lease, Guillermo and
Katherine now reside in New Mexico. In January 2018,
Defendants removed this case from the Florida state court to
this Court, alleging that the case invoked the Court's
diversity jurisdiction under 28 U.S.C. § 1332(a). Six
days after removal, Defendants answered Univest's
complaint, bringing counterclaims of their own against
Univest, along with third-party claims against TrailPods and
Motion, Univest says that Defendants improperly removed this
case to the District of New Mexico. Because removed actions
must be filed in the district "embracing the place where
such action is pending" 28 U.S.C. § 1441(a),
Defendants should have removed this case to the United States
District Court for the Southern District of Florida, since
that is the place embracing the Circuit Court of Miami-Dade
County. Second, Univest moves to dismiss under Rule 12(b)(2),
contending that personal jurisdiction over it to entertain
Defendant's counterclaims is absent because Univest is
not registered to conduct business in New Mexico, has no
registered agent for service of process here, no employees,
and conducts no business of any kind in the state. Moreover,
Univest moves to dismiss under Rule 12(b)(5) because it
contends that that Defendants never properly served their
answer or counterclaims on Univest in the first place. In the
alternative, Univest contends that if the Court does find it
has personal jurisdiction over it, the Court should transfer
this action to the proper venue, the United States District
Court for the Southern District of Florida.
federal court may choose among threshold grounds for denying
to adjudicate a case on the merits. Ruhr gas AG v.
Marathon Oil Co., 526 U.S. 574, 577-83 (1999). This
Court remands this case without deciding Univest's
motions to dismiss for lack of personal jurisdiction and for
defective service of process.
MOTION TO REMAND
plaintiff files in state court a civil action over which the
federal district courts would have original jurisdiction
based on diversity of citizenship, the defendant may remove
the action to federal court, see 28 U.S.C. §
1441(a), provided that it is removed "to the district
court of the United States for the district and division
embracing the place where such action is pending." 28
U.S.C. § 1441(a). The removing defendant bears the
burden of establishing that the case is properly before the
federal court. Huffman v. Saul Holdings Ltd.
P'ship, 194 F.3d 1072, 1079 (10th Cir. 1999). The
federal statute providing for the removal of cases from state
to federal court was intended to restrict rather than enlarge
removal rights. Greenshields v. Warren Petroleum
Corp., 248 F.2d 61, 65 (10th Cir. 1957). Federal courts,
therefore, are to strictly construe the removal statutes and
to resolve all doubts against removal. Fajen v.
Foundation Reserve Ins. Co., Inc., 683 F.2d 331, 333
(10th Cir. 1982).
because the United States District Court for the Southern
District of Florida embraces the Miami-Dade County Circuit
Court, Defendants improperly removed this case to this
District. In their opposition brief, Defendants advanced no
evidence, arguments, or law refuting Univest's position
to the contrary. Thus, they have not carried their burden of
showing that removal to this District was proper.
IS THEREFORE ORDERED that Plaintiffs Motion to
Remand [Doc. 10] is GRANTED and this action
is hereby REMANDED to the Circuit Court of
the Eleventh Judicial Circuit in and for Miami-Dade County,
IS FURTHER ORDERED that Plaintiffs Request for
Transfer of Venue to the United States District Court for the
Southern District of Florida is MOOT.
Court limits this Order to remanding this case, and does not
adjudicate Plaintiffs motions to dismiss under Rules 12(b)(2)