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Dempsey v. Nationstar Mortgage LLC

United States District Court, S.D. West Virginia, Beckley Division

December 1, 2017

PAULA DEMPSEY, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, Defendant.

          MEMORANDUM OPINON AND ORDER

          IRENE C. BERGER, UNITED STATES DISTRICT JUDGE.

         The Court has reviewed the Plaintiff's Motion to Remand (Document 11), the Plaintiff's Memorandum in Support of Her Motion to Remand (Document 12), the Response of Defendant Nationstar Mortgage LLC to Plaintiff's Motion to Remand (Document 16), and the Plaintiff's Reply in Support of Her Motion to Remand (Document 17). The Court has also reviewed the Defendant Nationstar Mortgage LLC's Motion to Dismiss for Improper Venue (Document 8) and Memorandum in Support (Document 9), the Plaintiff's Response to Defendant Nationstar Mortgage LLC's Motion to Dismiss for Improper Venue (Document 14), and the Defendant Nationstar Mortgage LLC's Reply Memorandum in Support of Its Motion to Dismiss for Improper Venue (Document 15). Finally, the Court has reviewed the Plaintiff's Complaint (Document 1-1) and the Defendant's Notice of Removal (Document 1) together with all attached exhibits. For the reasons stated herein, the Court finds that the Plaintiff's motion to remand should be granted and the Defendant's motion to dismiss should be terminated as moot.

         PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         The Plaintiff, Paula Dempsey, filed her complaint in the Circuit Court of Raleigh County, West Virginia, on April 29, 2016. Ms. Dempsey named Nationstar Mortgage, LLC (“Nationstar”) as the Defendant. Nationstar removed the case to federal court on March 9, 2017, asserting diversity jurisdiction. Ms. Dempsey was a resident of West Virginia at the time of the filing of the complaint, but is now a resident of Florida. Nationstar is a limited liability company organized under the laws of Delaware, and has its principal place of business in Texas.

         Ms. Dempsey alleges that in a previous lawsuit before the Circuit Court of Raleigh County, West Virginia, she and the Defendant entered into a Settlement Agreement dated November 19, 2014. (Pl.'s Compl. at ¶ 2.) After that settlement agreement was executed, however, the Defendant “continued to send statements, letters and notices to Plaintiff which claimed the Plaintiff was still indebted to Defendant.” (Id. at ¶ 4.) Ms. Dempsey alleges that the Defendant's actions both breached the settlement agreement and violated the West Virginia Consumer Credit Protection Act (“WVCCPA”), specifically W.Va. Code §§ 46(A)-2-127(d) and 46(A)-2-128(e).

         On March 29, 2017, the Defendant filed its motion to dismiss the action for improper venue. While that motion was pending, and before filing any response, the Plaintiff filed her motion to remand on April 10, 2017, asserting that the Defendant's notice of removal was not timely filed, and that the Defendant has failed to prove that the amount in controversy exceeds $75, 000. The Defendant filed its response on April 19, 2017, and the Plaintiff filed her reply on April 26, 2017. The Plaintiff filed her response in opposition to the Defendant's motion to dismiss on April 12, 2017, and the Defendant replied on April 19, 2017. Both motions are fully briefed and ripe for review.

         STANDARD OF REVIEW

         An action may be removed from state court to federal court if it is one over which the district court would have had original jurisdiction. 28 U.S.C. § 1441(a).[1] This Court has original jurisdiction of all civil actions between citizens of different states or between citizens of a state and citizens or subjects of a foreign state where the amount in controversy exceeds the sum or value of $75, 000, exclusive of interests and costs. 28 U.S.C. § 1332(a)(1)-(2). Generally, every defendant must be a citizen of a state different from every plaintiff for complete diversity to exist. Diversity of citizenship must be established at the time of removal. Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir.1998).

         Section 1446 provides the procedure by which a defendant may remove a case to a district court under Section 1441. Section 1446 requires that “[a] defendant or defendants desiring to remove any civil action from a State court shall file . . . a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). The notice of removal must be filed within thirty days after receipt of the initial pleading. However, Section 1446 also states as follows:

If the case stated by the initial pleading is not removable, notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b). It is a long settled principle that the party seeking to adjudicate a matter in federal court, through removal, carries the burden of alleging in its notice of removal and, if challenged, demonstrating the court's jurisdiction over the matter. Strawn et al. v. AT &T Mobility, LLC et al., 530 F.3d 293, 296 (4th Cir. 2008); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“The burden of establishing federal jurisdiction is placed upon the party seeking removal.”) (citation omitted).

         Accordingly, in this case, the removing defendant has the burden to show the existence of diversity jurisdiction by a preponderance of the evidence. See White v. Chase Bank USA, NA., Civil Action No. 2:08-1370, 2009 WL 2762060, at *1 (S.D. W.Va. Aug. 26, 2009) (Faber, J.) (citing McCoy v. Erie Insurance Co., 147 F.Supp.2d 481, 488 (S.D. W.Va. 2001)). In deciding whether to remand, because removal by its nature infringes upon state sovereignty, this Court must “resolve all doubts about the propriety of removal in favor of retained state jurisdiction.” Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).

         DISCUSSION

         The Plaintiff asserts in her motion to remand that the Defendant's notice of removal was untimely filed, that the Defendant has failed to establish by a preponderance of the evidence that the amount in ...


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