United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
date, the Court considered Plaintiff's Motion to Remand
(Docket no. 7). After careful consideration, the Court DENIES
the motion and DISMISSES Defendant Marty LaCouture as
Bill and Joan Barrett allege that in or about June 2015,
Defendants stopped accepting Plaintiffs' payments on
their mortgage secured by the property at 8410 Pericles Dr.,
Universal City, Texas. Docket no. 1-1 at 7. Defendants BSI
Financial allege that Plaintiffs failed to pay at least
twenty-four scheduled monthly payments through December 2014.
Id.; Docket no. 4 at 5-6. Plaintiffs allege they
attempted to contact Defendants about the alleged amount owed
on multiple occasions, but that they were unsuccessful and
heard nothing from Defendants for months. Docket 1-1 at 7.
allege they attempted to pay their 2016 taxes, but were told
this would not be approved because their escrow was negative.
Docket no 1-1 at 8. Plaintiffs state they still proceeded to
pay their 2016 taxes and allege they sent Defendants bank
statements and other documentation to attempt to correct the
mistake. Id. Plaintiffs allege that Defendants
continued to charge them for taxes already paid for in full
and never returned their calls, but that Defendants did
return a payment of $13, 383.58. Id. Plaintiffs
allege Defendants posted the property for foreclosure on May
7, 2017, without proper notice to cure or intent to
accelerate. Id. Plaintiffs allege that Defendants
were contractually obligated to notify Plaintiffs of their
default and with notice to cure prior to paying any
delinquent taxes. Id. at 8-9. There has been no
actual foreclosure of the property in this case. Docket no. 3
then brought this action in the 150th Judicial District Court
of Bexar County, Texas, on March 3, 2017, naming as
defendants BSI Financial and Marty LaCouture. Docket no. 1-1
at 6. Plaintiff asserted claims for breach of contract,
violation of the Deceptive Trade Practices Act, breach of
warranty, fraud, violation of the Texas Fair Debt Collection
Practices Act, and declaratory judgment against all
Defendants. Id. at 10-13. Plaintiffs also asserted a
claim for negligence against Defendant LaCouture.
Id. at 13-14.
March 29, 2017, Defendants BSI Financial removed the action
to this Court on the basis of diversity jurisdiction. Docket
no. 3. The notice of removal states that Plaintiffs are
residents of Texas. Id. at 3. The notice of removal
also states that Defendant BSI Financial is a citizen of
Delaware for purposes of diversity jurisdiction because it is
a corporation incorporated in Delaware with its principal
place of businesses in Delaware. Id. The notice of
removal further states that Defendant LaCouture is a resident
of Texas whose citizenship can be disregarded for purposes of
diversity jurisdiction because he has been improperly joined.
Id. The notice of removal states that the amount in
controversy exceeds $75, 000. Id. at 6-7.
April 27, 2017, Plaintiffs moved to remand the case to state
court due to a lack of diversity jurisdiction. Docket no. 7.
Plaintiffs assert they are citizens of Texas and that
LaCouture is a properly joined citizen of Texas. Id.
LaCouture is properly joined, then his citizenship must be
considered and there is no diversity jurisdiction. Defendant
BSI Financial argues that Plaintiffs' complaint fails to
meet proper pleading standards with respect to LaCouture
because Plaintiffs cannot maintain a wrongful foreclosure
cause of action against LaCouture, and any breach of
LaCouture's duty does not constitute an independent tort.
Docket no. 3 at 5-6. As a result, Defendant BSI argues that
LaCouture was improperly joined, which means that diversity
jurisdiction exists. Plaintiffs argue LaCouture can be held
individually liable for violation of his duty to treat the
parties fairly, and this Court cannot say that Plaintiffs
have no reasonable basis to recover against LaCouture in
state court. Docket no. 7 at 2. As a result, Plaintiffs argue
LaCouture was properly joined, which means that there is no
diversity of citizenship. This Court agrees with Defendant
BSI and finds that LaCouture was improperly joined.
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 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). On a motion to remand, the court must
consider whether removal was proper. In order for removal to
be proper, a district court must have original jurisdiction
over the removed action. See id.
district courts have original jurisdiction over civil actions
if the parties are diverse and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a). There is no
dispute regarding the amount in controversy, which is alleged
to be in excess of $75, 000. Docket no. 3. Further, there are
no disputes regarding the states of citizenship of any of the
defendant may remove a case with a non-diverse defendant to a
federal forum if the non-diverse defendant is improperly
joined. Smallwood v. Illinois Cent. R. Co., 385 F.3d
568, 573 (5th Cir. 2004). There are two ways to establish
improper joinder: “(1) the plaintiff has
stated a claim against a diverse defendant that he
fraudulently alleges is non[-]diverse, or (2) the plaintiff
has not stated a claim against a defendant that he
properly alleges is non[-]diverse.” Int'l
Energy Ventures Mgmt., L.L.C. v. United Energy Grp.,
Ltd., 818 F.3d 193, 199 (5th Cir. 2016) (citing
Smallwood, 385 F.3d at 573) (emphasis in original).