United States District Court, D. Nevada
J. DAWSON, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion to Remand (#11) to
which Defendants Nationstar Mortgage LLC and Mortgage
Electronic Registration Systems, Inc. each filed a separate
Response in Opposition (#22) and (#27).
August 25, 2005, Plaintiff Ernest Fresquez, Jr. obtained a
mortgage loan on his home from Countrywide Home Loans, Inc.
in the amount of $523, 800.00. Beginning on or about June 30,
2008, Plaintiff alleges that Defendants, and other
beneficiaries and services, filed a series of notices of
default, elections to sell, and notices of trustee's
sales. This pattern continued over the next eight years.
During this time, on March 27, 2012, the deed of trust was
assigned by Defendant Mortgage Electronic Registration
Systems, Inc. (MERS) to Defendant U.S. Bank, N.A. Currently,
Defendant U.S. Bank is the beneficiary of Plaintiff's
deed of trust and Defendant Nationstar Mortgage is the loan
alleges that the instrument assigning the deed of trust to
U.S. Bank, as well as other instruments in the various
foreclosure processes, were fraudulently signed. Plaintiff
claims that Defendants Nationstar and U.S. Bank also violated
Nevada law by engaging in dual tracking of Plaintiff's
property and failing to provide Plaintiff with a single point
of contact. Plaintiff filed the present action against
Defendants alleging damages in excess of $10, 000.00.
initially filed his Complaint with the District Court of the
State of Nevada on May 12, 2016. Defendant Nationstar filed
Notice of Removal (#1) on June 8, 2016, claiming original
jurisdiction under 28 U.S.C. § 1332. Plaintiff then
filed the present Motion to Remand arguing that Defendants
failed to meet their burden in establishing the
jurisdictional amount. Further, Plaintiff argues that the
removal was improper because Plaintiff's claim involves a
local controversy and that Defendant U.S. Bank has not
consented to removal.
original jurisdiction is questioned, 28 U.S. Code § 1447
allows parties to file a motion to remand an action to a
state court within thirty days after the notice of removal
was filed. When the original right of removal is in doubt,
the case should be remanded. Matheson v. Progressive
Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
Also, if at any time before judgment, it becomes apparent
that the case was improperly removed, it should be remanded.
Libhart v. Santa Monica Dairy Co., 592 F.2d 1062,
1065 (9th Cir. 1979).
U.S.C. § 1441(a) gives defendants the right to remove
state court proceedings to a federal district court, when the
district court has original jurisdiction over the matter.
Original jurisdiction exists when the parties are from
different states, and the amount in controversy is more than
$75, 000.00. 28 U.S.C.A. § 1332. The removing party has
the burden of establishing that original jurisdiction exists.
Hunter v. United Van Lines, 746 F.2d 635, 639 (9th
Cir. 1984). Part of this burden is to show by a preponderance
of the evidence that the amount in controversy exceeds the
statutory requirement. Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992). Normally this burden is met when
the plaintiff claims damages more than $75, 000.00.
Id. However, in “actions seeking declaration
or injunctive relief, it is well established that the amount
in controversy is measured by the value of the object of the
litigation.” Cohn v. Petsmart, Inc., 281 F.3d
837, 840 (9th Cir. 2002) (quoting Hunt v. Washington
State Apple Advert. Comm'n, 432 U.S. 333, 347 (U.S.
action is removed from a state court solely because there is
original jurisdiction, all defendants who have been properly
joined and served must consent to the removal. 28 U.S.C.
§ 1446 (b)(2). When a party has not been properly
served, their consent is not needed. Salveson v. W.
States Bankcard Ass'n, 731 F.2d 1423, 1429 (9th Cir.
1984) (superseded by statute on other grounds); see also
Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1
(9th Cir. 1988).
order remanding the case may require payment of just costs
and any actual expenses, including attorney fees, incurred as
a result of the removal.” 28 U.S.C. §1447(c).
However, section 1447(c) does not create an automatic
awarding of attorney's fees for every case that is
remanded. Martin v. Franklin Capital Corp., 546 U.S.
132, 136 (2005). Generally, when the basis for removing the
case is objectively reasonable, attorney's fees should
not be awarded. Id. at 141.
has asserted that this case should be remanded for three
reasons: 1) Defendants have failed to establish an amount in
controversy that exceeds $75.000.00; 2) Plaintiff's claim
involves a local controversy; and 3) Defendant U.S. Bank did
not consent to the removal. Additionally, Plaintiff seeks
reasonable attorney's fees on the grounds that removal
Complaint, Plaintiff prays for injunctive relief that would
enjoin Defendants from “conducting further foreclosure
activity.” Since Plaintiff is seeking injunctive
relief, the amount in controversy is measured by the value of
the property, $523, 800.00. See Cohn, 281 F.3d at
840. This sum ...