United States District Court, D. Nevada
SUET F. WONG, Plaintiffs,
COUNTRYWIDE HOME LOANS, INC., et al., Defendants.
before the court is pro se plaintiff Suet Wong's
motion to remand, (ECF No. 13) and defendant Countrywide Home
Loans, Inc.'s (“Countrywide”) motion to
dismiss the complaint (ECF No. 5). On May 16, 2016,
co-defendant MCM Capital Partners, LLC (“MCM”)
filed a joinder to Countrywide's motion to dismiss. (ECF
No. 7). The parties filed a response and reply to the motion
to dismiss, and Countrywide filed a response to the motion to
remand. (ECF Nos. 10, 11, 15). This court first examines the
motion to remand to determine whether the court has
jurisdiction over the present case and then considers
defendants' motion to dismiss the complaint.
March 30, 2016, plaintiff filed a lawsuit in state court
alleging seven causes of action: (1) fraud in the
concealment; (2) unconscionable contracts; (3) breach of
contract; (4) breach of fiduciary duty; (5) slander of title;
(6) intentional infliction of emotional distress; and (7)
declaratory relief. (ECF No. 1-1). These claims appear to be
based in the securitization of a property loan.
(Id.). Countrywide was served on April 4, 2016, and
filed a timely notice of removal on May 4,
2016. (ECF Nos. 1, 1-1 at 251).
motion to remand, plaintiff argues that this court lacks
jurisdiction because the amount in controversy requirement of
28 U.S.C. § 1332(a) is not satisfied. (ECF No. 13).
Defendants argue that the complaint should be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6) because
plaintiff is barred from bringing his present claims due to
the prior litigation of the same or similar claims. (ECF No.
Plaintiff's motion to remand
28 U.S.C. § 1441(a), “any civil action brought in
a [s]tate court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.”
of a case to a United States district court may be challenged
by motion. 28 U.S.C. § 1441(c). A federal court must
remand a matter if there is a lack of subject matter
jurisdiction. 28 U.S.C. § 1447(c); see also Knutson
v. Allis-Chalmers Corp., 358 F.Supp.2d 983, 988 (D. Nev.
2005). Removal statutes are construed restrictively and in
favor of remanding a case to state court. See Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09
(1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
Cir. 1992). “On a motion to remand, the removing
defendant faces a strong presumption against removal, and
bears the burden of establishing that removal was proper by a
preponderance of evidence.” Knutson, 358
F.Supp.2d at 988 (citing Sanchez v. Monumental Life Ins.
Co., 102 F.3d 398, 403-04 (9th Cir. 1996);
Gaus, 980 F.2d at 567).
action filed in state court may be removed to federal court
only if the federal court would have had original subject
matter jurisdiction over the action. 28 U.S.C. §
1441(a). This court has original subject matter jurisdiction
over two types of cases. First, pursuant to 28 U.S.C. §
1331, this court has federal question jurisdiction over
“all civil actions arising under the Constitution,
laws, or treaties of the United States.” Second,
pursuant to its diversity jurisdiction, the court may preside
over suits between citizens of different states where the
amount in controversy exceeds the sum or value of $75, 000.
28 U.S.C. § 1332(a)
party asserting diversity jurisdiction bears the burden of
proof.” Lew v. Moss, 797 F.2d 747, 749 (9th
Cir. 1986). “In ruling on a challenge to subject matter
jurisdiction, the district court is ordinarily free to hear
evidence regarding jurisdiction and to rule on that issue
prior to trial, resolving factual disputes where
necessary.” Augustine v. United States, 704
F.2d 1074, 1077 (9th Cir. 1983). The citizenship requirement
for subject matter jurisdiction based on diversity of parties
is determined “as of the time the lawsuit is
filed.” See Lew, 797 F.2d at 750; Carter
v. McConnel, 576 F.Supp. 556, 557 (D. Nev. 1983).
court has jurisdiction over the present case. Countrywide has
shown that the amount in controversy exceeds $75, 000 because
the mortgage loan underlying the case appears to be $106,
000, and the complaint directly requests relief exceeding
$100, 000. (ECF No. 1-1 at 3, 20). Regarding a
request for declaratory relief, the “value of the
object of the litigation” establishes the amount in
controversy, and the plaintiff's assertions of the sum at
risk by the litigation can affirm that object's value.
Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir.
2002) (quoting Hunt v. Wash. State Apple Adver.
Comm'n, 432 U.S. 333, 347 (1977)); see also
(ECF No. 1-1 at 18-19) (requesting declaratory relief).
Furthermore, these facts were adequately asserted by
defendant's petition for removal. (ECF No. 1).
Accordingly, plaintiff's motion to remand will be denied.
Defendants' motion to dismiss
request that this court dismiss plaintiff's complaint
pursuant to Federal Rules of Civil Procedure 8(a)(2) and
12(b)(6). (ECF No. 5). In particular, defendants assert that
plaintiff's claims are barred by the doctrines of res
judicata and collateral estoppel because plaintiff allegedly
litigated these issues in a previous case. See Wong v.
Countrywide Home Loans, Inc., 2016 WL 755472, at *1 (D.
Nev. Feb. 23, 2016); (ECF No. 5).