United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINON AND ORDER
C. BERGER, UNITED STATES DISTRICT JUDGE.
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.
HISTORY AND FACTUAL BACKGROUND
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.
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).
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.
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). 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).
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
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).
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).
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 ...