United States District Court, D. Nevada
January 5, 2017
ARMIN VAN DAMME, Plaintiff,
JPMORGAN CHASE BANK, INC. N.A. et al., Defendants.
M. Navarro, Chief Judge
before the Court is the Motion for Reconsideration (ECF No.
41) filed by Defendants Wells Fargo, Bank, N.A.,
(“Wells Fargo”), Wells Fargo Home Mortgage
(“Wells Fargo Home Mortgage”), a division of
Wells Fargo, America's Servicing Company
(“ASC”), a division of Wells Fargo, and U.S. Bank
National Association, as Trustee, successor in interest to
Bank of America, N.A. (“U.S. Bank”)
(collectively, “Wells Fargo Defendants”).
Defendants Bank of America, N.A. (“BANA”),
MERSCORP, Inc. (“MERSCORP”), and BANA Holding
Corp. (“BHC”), formerly known as LaSalle Bank
Corporation (collectively, “BANA Defendants”)
joined the Wells Fargo Defendants' Motion. (ECF No. 44).
Plaintiff Armin Van Damme (“Plaintiff”) filed a
Response to the Motion for Reconsideration. (ECF No. 45). The
BANA Defendants filed a Reply (ECF No. 46), and the Wells
Fargo Defendants filed a Joinder to that Reply (ECF No. 47).
present action involves the parties' interests in real
property located at 2775 Twin Palms Circle, Las Vegas, NV
89117 (the “Property”). (Compl., Ex. 1 to Pet.
for Removal, ECF No. 1-1). On August 28, 2015, Plaintiff
filed suit against various financial institutions in the
Eighth Judicial District Court of the State of Nevada (the
“state court”), alleging the following claims:
(1) quiet title, (2) wrongful foreclosure, (3) violation of
the Truth in Lending Act (“TILA”), (4) breach of
fiduciary duty, (5) fraud, (6) breach of the duty of good
faith and fair dealing, and (7) breach of contract.
(Id.). On October 8, 2015, the BANA Defendants
removed the case to this Court under federal question
jurisdiction, 28 U.S.C. § 1331, because of
Plaintiff's TILA violation claim. (Pet. for Removal
¶¶ 9-13, ECF No. 1). The BANA Defendants, joined by
the Wells Fargo Defendants (collectively,
“Defendants”), moved to dismiss all claims. (ECF
Nos. 6, 8). In his Response, Plaintiff conceded that his
claims for wrongful foreclosure, violation of TILA, and
breach of fiduciary duty should be dismissed. (Pl.'s
Resp. to MTD 8:1-7, ECF No. 24). On May 16, 2016, the Court
accepted Plaintiff's voluntary dismissal of these claims.
(Order 1:21-23, ECF No. 40). Upon the dismissal of
Plaintiff's TILA violation claim, the Court determined
that federal question jurisdiction over the case no longer
remained, and the Court declined to exercise supplemental
jurisdiction over the remaining state law claims.
(Id. 1:24-2:11). Accordingly, the Court remanded the
case back to the state court. (Id. 2:13-14).
Defendants filed the instant motion for reconsideration of
the remand order, arguing that despite the lack of federal
question, “diversity jurisdiction exists in this
case.” (Mot. Recons. 2:5-7, ECF No. 41). The Court
stayed the remand order until subject matter jurisdiction
could be reevaluated. (ECF No. 42).
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). District
courts have jurisdiction in two instances. First, district
courts have subject matter jurisdiction over civil actions
that arise under federal law. 28 U.S.C. § 1331. Second,
district courts have subject matter jurisdiction over civil
actions where no plaintiff is a citizen of the same state as
a defendant and the amount in controversy exceeds $75, 000.
28 U.S.C. § 1332(a).
plaintiff files a civil action in state court, the defendant
may remove that action to a federal district court if the
district court has original jurisdiction over the matter. 28
U.S.C. § 1441(a). Removal statutes are strictly
construed against removal jurisdiction. Ritchey v. UpJohn
Drug Co., 139 F.3d 1313, 1317 (9th Cir. 1998).
“Federal jurisdiction must be rejected if there is any
doubt as to the right of removal in the first
instance.” Gaus v. Miles, 980 F.2d 564, 566
(9th Cir. 1992) (quoting Libhart v. Santa Monica Dairy
Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). The defendant
always has the burden of establishing that removal is proper.
“motion[s] for reconsideration should not be granted,
absent highly unusual circumstances, ” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003), a full and
proper determination of subject matter jurisdiction is
paramount because subject matter jurisdiction is not
discretionary; rather, the court has an “virtually
unflagging obligation to exercise the jurisdiction conferred
upon [it] by the coordinate branches of government and duly
invoked by litigants.” Williams v. Costco Wholesale
Corp., 471 F.3d 975, 977 (9th Cir. 2006) (quoting
United States v. Rubenstein, 971 F.2d 288, 293 (9th
Cir. 1992) (alteration in original) (internal quotation marks
their Motion for Reconsideration, Defendants argue that even
though no federal question remains, the Court still has
jurisdiction over this case through diversity. (Mot. Recons.
4:17-6:16). Diversity jurisdiction requires different
citizenships of Plaintiff and all Defendants, along with an
amount in controversy of over $75, 000. 28 U.S.C. §
“Plaintiff does not dispute that the amount in
controversy exceeds the threshold value of $75,
000.00.” (Pl. Resp. 10:25-27, ECF No. 45). Plaintiff
also does not dispute the different citizenships of the
parties. (See Pl. Resp. 8:14-12:4). Rather,
Plaintiff argues that reconsideration is not warranted, and
Defendants should not be permitted to amend the Notice of
Removal to include diversity as a basis for jurisdiction.
(Id.). Specifically, Plaintiff contends that
“[b]oth the interests of justice and judicial economy
require a rejection of Defendants' Motion.” (Pl.
Court finds that reconsideration of its prior order is
appropriate given the importance of subject matter
jurisdiction. See Costco Wholesale Corp., 471 F.3d
at 977. Further, the Court finds that it has diversity
jurisdiction over this case. “When a case is properly
removed to federal court, the district court may exercise
jurisdiction on all bases apparent from the complaint, not
merely the basis raised in the removal notice.”
Kakarala v. Wells Fargo Bank, N.A., 615 F. App'x
424, 425 (9th Cir. 2015) (quoting Costco Wholesale
Corp., 471 F.3d at 976). Amount in controversy is not in
dispute. Additionally, Defendants clearly set out in their
motion the diverse citizenship of each party (Mot. Recons.
4:20-24), which Plaintiff does not dispute in his Response.
Plaintiff's Complaint also supports Defendants'
assertion of diversity of citizenship. (See Compl.
¶¶ 1-10). Given that diversity jurisdiction exists,
the Court has no discretion to remand Plaintiff's
remaining state law claims. See Williams, 471 F.3d
at 977. Accordingly, the Court's prior remand order is
vacated, and the case shall remain before this Court.
HEREBY ORDERED that Defendants' Motion to Reconsider (ECF
No. 41) is GRANTED. The Court finds that it has diversity
jurisdiction over this case. Accordingly, the Court's
Order (ECF No. 40) remanding the case to state court is
 Plaintiff also asserts procedural
defects regarding removal. (Pl. Resp. 3:3-7, 3:20-26).
However, 28 U.S.C. § 1447 requires that a “motion
to remand the case on the basis of any defect other than lack
of subject matter jurisdiction must be made within 30 days
after the filing of the notice of removal.” 28 U.S.C.
§ 1447(c). Plaintiff did not file a motion to remand
regarding these procedural defects within the allowable 30
days, which Plaintiff conceded in his original response to
Defendants' Motion to Dismiss. (See Pl. Resp. to
MTD 3:17-20). As such, Plaintiff has waived these alleged
procedural defects regarding removal.
 Plaintiff's Complaint includes
Defendant “Mortgage Lending and Investment, Inc.,
” a domestic corporation, which would have originally
defeated diversity jurisdiction in this case. Although
Plaintiff's causes of action refer to “All
Defendants, ” there are no specific allegations against
Mortgage Lending and Investment, Inc. Further, Plaintiff does
not appear to have served Mortgage Lending and Investment,
Inc., which also does not appear as a listed defendant on the
docket in this case. Lastly, Plaintiff's Response names
the “Defendants in Plaintiff's Complaint” and
Mortgage Lending and Investment, Inc. is not included in that
list. (Pl. Resp. 2:14- 16). Accordingly, the Court finds that
Mortgage Lending and Investment, Inc. is not a current
defendant in this case, and as such, it does not destroy
diversity. See Kakarala, 615 F. App'x at 425
(citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 64
(1996)) (“The fact that a non-diverse party was once
joined in a case does not prevent a court from exercising
diversity jurisdiction after the non-diverse party's