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Kidwai v. Federal National Mortgage Association

United States District Court, Fifth Circuit

January 22, 2014

ASAM KIDWAI, Plaintiff,



On this date, the Court considered Plaintiff's motion to remand (docket no. 6). For the following reasons the Court GRANTS the motion.

I. Background

On August 24, 2012, Plaintiff Asam Kidwai filed suit in 288th Judicial District Court of Bexar County, Texas against Defendants Federal National Mortgage Association ("Fannie Mae"), CitiMortgage, Inc. ("CitiMortgage"), Seterus, Inc. ("Seterus"), and Barrett, Daffin, Frappier, Turner & Engle, LLP ("BDFTE"). It is undisputed that Plaintiff and BDFTE are citizens of Texas for diversity jurisdiction analysis. On October 17, 2013, the state court dismissed Plaintiff's claims against BDFTE. Docket No. 1-11, Ex. B-71. Six days later, Seterus removed the action to this Court. Docket No. 1.[1] Seterus alleges that, although removal occurred over a year after commencement of the action, removal is proper because Plaintiff acted in bad faith to prevent removal. Specifically, Seterus asserts that Plaintiff failed to diligently pursue his claims against BDFTE and that Plaintiff engaged in delay tactics for the purpose of keeping BDFTE as a non-diverse defendant for over a year. On November 21, 2013, Plaintiff moved to remand the action to state court. Docket No. 6. Plaintiff disputes Seterus's assertions of fact and its ultimate conclusion of bad faith. He alleges that the case has been frustrated by Defendants' refusal to answer discovery and by the parties' good-faith mediation attempts. BDFTE, Seterus, and CitiMortgage responded and Plaintiff replied. Seterus then moved to strike Plaintiff's reply. Docket No. 22.

II. Seterus's Motion to Strike

Seterus seeks to strike Plaintiff's reply to his motion to remand and the attorney declaration contained therein. Docket No. 22. Seterus notes that Plaintiff's reply is untimely and that Plaintiff did not seek an extension of time in which to reply. See W.D. TEX. R. 7(f) (requiring a reply be filed within seven days after the filing of a response). The Court admonishes Plaintiff for replying after the deadline and for not seeking an extension of time to respond. Nevertheless, the Court denies Seterus's motion to strike and, to the extent that the declaration asserts undisputed facts and clarify the state-court record, the Court will consider Plaintiff's attorney declaration. See Nelms v. Kramer, SA-10-CV-627-NN, 2011 WL 3862269, at *1 (W.D. Tex. Aug. 31, 2011) (admonishing a party for failure to comply with Local Rule 7(f), but choosing not to strike the party's response); Gerald v. Univ. of S. Mississippi, 2:12-CV-147-KS-MTP, 2013 WL 5592454, at *3 (S.D.Miss. Oct. 10, 2013) (noting that local rules are not jurisdictional in nature and a court is free to consider filings not in precise compliance with them).

III. Removal and Remand

1. Legal Standard

A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction. See 28 U.S.C. § 1441(a). On a motion to remand, the court must consider whether removal was proper. Removal is proper in any case in which the federal court would have had original jurisdiction. Id. To determine whether jurisdiction is present for removal, the Court considers the claims in the state court petition as they existed at the time of removal. Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995). The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Any ambiguities are to be construed against removal, as the removal statute should be strictly construed in favor of remand. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).

Generally, a defendant must remove a case within thirty days after service of the initial pleadings or service of summons. 28 U.S.C. § 1446(b)(1). If the initial pleading is not removable, "a 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 first be ascertained that the case is one which is or has become removable." Id. § 1446(b)(3). Regardless, a defendant may not remove a case on the basis of diversity jurisdiction "more than 1 year after the commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action." Id. § 1466(c)(1); see Pub. L. No. 112-63 § 105(d) (amending § 1446(c)(1) in 2011 to add an equitable tolling exception); Tedford v. Warner-Lambert Co., 327 F.3d 423, 426 (5th Cir. 2003) (recognizing equitable tolling for bad faith conduct before the 2011 amendment to § 1446(c)(1)). Conduct rises to the level of "bad faith" when a party makes a "transparent attempt to avoid federal jurisdiction." Carey v. Allstate Ins. Co., 2:13-CV-2293, 2013 WL 5970487, at *3 (W.D. La. Nov. 7, 2013) (citing Williams v. Mor-Tem Risk Mgmt. Servs. Inc., 2012 WL 1014752, at *5 (W.D. La. Mar. 22, 2012). Courts must determine whether bad faith exists on a case-by-case basis, balancing the equitable exception with "the general rule that removal jurisdiction is to be strictly construed [in favor of remand], as its application deprives a state court of a case properly before it and thereby implicates important federalism concerns.'" Id. (citing Foster v. Landon, 2004 WL 2496216, at *2 (E.D. La. Nov. 4, 2004).

2. Discussion

Under 28 U.S.C. § 1332, a federal court has jurisdiction over controversies involving disputes between citizens of different states where the amount in controversy exceeds $75, 000. Here, it is undisputed that only Plaintiff and BDFTE are citizens of Texas. All other Defendants are diverse. Additionally, Plaintiff seeks over a million dollars in damages. See DTPA Demand Letter, Docket No. 6, Ex. 1. Thus, the only disputed issue regarding jurisdiction is whether Seterus's removal over a year after commencement of the suit, was proper.

Seterus asserts that Plaintiff's bad faith actions prevented removal within a year of commencement of the case and that consequently, it can now remove. See 28 U.S.C. § 1446(c)(1). Seterus argues for three indications of bad faith, (1) that BDFTE was a non-diverse party joined solely for the purpose of defeating diversity jurisdiction, (2) that the record shows Plaintiff failed to diligently pursue his claims against BDFTE, and (3) that ...

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