United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
THOMAS
E. JOHNSTON, UNITED STATES DISTRICT JUDGE
By
Standing Order entered January 4, 2016, and filed in this
case on December 22, 2017, this case was initially referred
to United States Magistrate Judge Dwane L. Tinsley for
Findings of Fact and Recommendations for disposition. (ECF
No. 5.) For reasons appearing to the Court, the Court
VACATES the Standing Order only with respect
to this case, and the undersigned will proceed to toward
resolution of this case.
Pending
before the Court is Plaintiffs' Motion to Remand, (ECF
No. 1); pro se Defendant Mark Andrew Gomez's
Motion and Demand for Plaintiffs to Add Indispensable Party
Pursuant to Rule 12(b)(7) (Second Request), (ECF No. 6),
Motion for Interim Accounting of Plaintiffs'
Attorney's Fees, (ECF No. 7), and Motion for
Consideration of Dependent Relative Revocation of November
12, 2008 Will, (ECF No. 9); Third Party Defendant Kayla
Addison's Motion to Dismiss, (ECF No. 11); and pro
se Defendant Robert Brian Gomez's Motion for
Permission for Electronic Case Filing, (ECF No. 13).
This
case arises out of a dispute regarding the validity of a will
executed by Dr. Aurelio Rafael Gomez on June 14, 2016. (ECF
No. 2-1 at 1.) The complaint, originally filed in the Circuit
Court of Kanawha County, West Virginia, and amended once
thereafter, seeks to invalidate the last will and testament
of Dr. Gomez and to hold the estate's executor, Mark
Andrew Gomez, personally liable for fraud, undue influence,
and abuse of a confidential relationship. (See Id.
at 1-5.) Plaintiffs originally filed their complaint in state
court on November 7, 2017, and subsequently amended it on
November 28, 2017, naming the following Defendants: Mark
Andrew Gomez (“Mark Gomez”), both in his capacity
as executor of the Estate of Dr. Aurelio Rafael Gomez and
individually, David Brent Gomez, and Robert Brian Gomez
(“Robert Gomez”). (ECF No. 14-1 at 1.) Defendant
Mark Gomez proceeded to file a third party action against
Empower Retirement, Kayla Addison, and Western Surety
Company, as well as a countersuit against the two Plaintiffs.
(ECF No. 3 (filed in the Circuit Court of Kanawha County on
December 12, 2017).)
Defendant
Robert Gomez, who is pro se, removed the case to
this Court on December 21, 2017. (ECF No. 2.) In the Notice
of Removal, he asserts that the sole basis for the
Court's subject-matter jurisdiction over this case is
diversity pursuant to 28 U.S.C. § 1332 because he is a
resident of Florida while the two Plaintiffs are residents of
West Virginia and New Hampshire. (Id. at 2.)
Plaintiffs filed the current Motion to Remand the same day as
removal on December 21, 2017, in which they argue that this
Court lacks subject-matter jurisdiction over the matter
because complete diversity does not exist where Plaintiff
Andrea Gomez Smith and primary Defendant Mark Gomez both
reside in West Virginia. (ECF No. 1 at 2.) Robert Gomez filed
a response to the motion on January 12, 2018, (ECF No. 15),
over a week past the filing deadline established under this
Court's Local Rules. See L.R. Civ. P. 7.1(a)(7).
Because Robert Gomez ignored the filing deadline established
by the Court's Local Rules, did not seek judicial
modification of that deadline, and nonetheless failed to set
forth a meritorious argument within his brief, [1] the Court will
exercise its discretion in not considering the untimely
response. As such, the Motion to Remand is ripe for
adjudication.
Article
III of the United States Constitution provides, in pertinent
part, that “[t]he judicial Power shall extend . . . to
Controversies . . . between Citizens of different States . .
. .” U.S. Const. art. III, § 2. “The
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C.
§ 1332(a)(1). This statute, which conveys federal
district court jurisdiction over suits involving more than
$75, 000, “applies only to cases in which the
citizenship of each plaintiff is diverse from the citizenship
of each defendant.” Caterpillar Inc. v. Lewis,
519 U.S. 61, 68 (1996).
Congress
provided a right to remove a case from state to federal court
under 28 U.S.C. § 1441. This statute states, in relevant
part:
Except as otherwise expressly provided by Act of Congress,
any civil action brought in a state 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.
28 U.S.C. § 1441(a). Because removal of civil cases from
state to federal court infringes state sovereignty, federal
courts strictly construe the removal statute and resolve all
doubts in favor of remanding cases to state court. See
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
109 (1941); see also Mulcahey v. Columbia Organic Chems.
Co., 29 F.3d 148, 151 (4th Cir. 1994) (“Because
removal jurisdiction raises significant federalism concerns,
we must strictly construe removal jurisdiction.”
(citation omitted)). The party asserting federal jurisdiction
bears the burden of proof. Landmark Corp. v. Apogee Coal
Co., 945 F.Supp. 932, 935 (S.D. W.Va. 1996).
The
sole issue before the Court is whether it has diversity
jurisdiction over this matter.[2] A cursory review of this case
indicates that it does not. Robert Gomez asserts in the
Notice of Removal that diversity exists in this case merely
because he is a resident of Florida while Plaintiffs Andrea
Gomez Smith and Matthew Eric Gomez are residents of West
Virginia and New Hampshire, respectively. However, Robert
Gomez fails to take into consideration the doctrine of
complete diversity, which interprets the diversity statute
contained in 28 U.S.C. § 1332 as requiring each
plaintiff to have citizenship diverse from that of each
defendant. See, e.g., Caterpillar Inc., 519
U.S. at 68, cited in Hoschar v. Appalachian Power
Co., 739 F.3d 163, 170 (4th Cir. 2014). The first
amended complaint, attached to the Notice of Removal, clearly
states that Plaintiff Andrea Gomez Smith and Defendant Mark
Gomez are both residents of Kanawha County, West Virginia.
(ECF No. 21 at 2 ¶¶ 2, 3.) Robert Gomez does not
contest this assertion either in the Notice of Removal or in
his untimely response to the Motion to Remand. Because at
least one Plaintiff shares citizenship with at least one
Defendant, this Court cannot assert diversity jurisdiction
over this action regardless of the amount in
controversy.[3] Robert Gomez has not met his burden of
establishing federal jurisdiction in this case. Without an
alternative basis for jurisdiction, which the Notice of
Removal does not assert and the operative pleading does not
provide, this Court cannot retain jurisdiction.
For
these reasons, the Court GRANTS
Plaintiffs' Motion to Remand, (ECF No. 1), DENIES
AS MOOT the remaining motions, (ECF Nos. 6, 7, 9,
11, 13), and REMANDS this case to the
Circuit Court of Kanawha County, West Virginia. The Court
further DIRECTS the Clerk to remove this
matter from the Court's docket.
IT
IS SO ORDERED
The
Court DIRECTS the Clerk to send a copy of
this Order to counsel of ...