United States District Court, N.D. Texas, Dallas Division
THE BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee for Registered Holders of CWABS Inc Asset Backed Certificates, Series 2007-12, Plaintiff,
RANDIP GREWAL; REGINAL PERKINS; PARVINDER GREWAL; and All Occupants of 1211 Harbor Dune Ct Irving, TX 75063, Defendants.
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is Plaintiff's Motion to Remand  Proceeding
(Doc. 5), filed November 15, 2018. After careful
consideration of the motion, objections by Defendants,
record, and applicable law, the court grants
Plaintiff's Motion to Remand  Proceeding (Doc. 5).
is The Bank of New York Mellon, f/k/a The Bank of New York as
trustee for registered Holders of CWABS, Inc., Asset-Backed
Certificates, Series 2007-12 (“Plaintiff” or
“Mellon”). Defendants are Randip Grewal, Reginald
Perkins, Parvinder Grewal, and/or All Occupants
(collectively, “Defendants”) of 1211 Harbor Dune
Ct., Irving, Texas 75063 (the “Property”).
Plaintiff filed a forcible detainer action against Defendants
in state court on November 2, 2018.
purchased the Property at a foreclosure sale that took place
on June 5, 2018, and is the named Grantee in a Substitute
Trustee's Deed that memorializes the foreclosure sale.
The Substitute Trustee's Deed was recorded in the real
property records of Dallas County, Texas. The foreclosure
sale was held pursuant to the terms of a Deed of Trust
encumbering the Property and executed by Grantors Randip S.
Grewal and Parvinder K. Grewal, husband and wife. The Deed of
Trust is dated July 27, 2007; recorded in the real property
records of Dallas County, Texas; and provides that upon the
occurrence of a foreclosure sale, Defendant Randip S. Grewal
or any person holding possession of the Property through
Defendant shall surrender the Property to the purchaser at
such sale or be deemed a tenant at sufferance.
foreclosure and in accordance with Section 24.005 of the
Texas Property Code, Plaintiff made written demand on all
Defendants on June 21, 2018, to vacate the Property. Although
demand was duly made, Defendants refused or failed to vacate
the Property. Defendants' refusal or failure to vacate
the Property constituted an act of forcible detainer as that
term is defined under Section 24.002 of the Texas Property
Code. As a result, on November 2, 2018, Mellon filed
Plaintiff's Original Petition for Forcible Detainer in
the Justice Court, Precinct 4, Place 2, Dallas County, Texas.
case was assigned to and docketed under Cause Number 5068045.
The case was scheduled for trial to be held November 15,
2018. Immediately prior to the trial setting, Defendant
Randip S. Grewal filed a Notice of Removal on behalf of all
Defendants and removed the forcible detainer action to
federal court, contending that diversity jurisdiction exists
because there is complete diversity of citizenship between
the parties and the amount in controversy exceeds $75, 000,
exclusive of interest and costs.
opposes the removal and seeks remand of this action to the
Justice Court, Precinct 4, Place 2, Dallas County, Texas. It
contends the court lacks jurisdiction because this action
cannot be removed, as Defendants are citizens of Texas and 28
U.S.C. § 1441(b)(2) does not allow removal of an action
if any defendant is a citizen of the state in which the
action is brought. Plaintiff also opposes removal because it
contends Defendants have not established that the amount in
controversy exceeds $75, 000.
oppose remand and contend that complete diversity of
citizenship exists between the parties and the amount in
controversy exceeds $75, 000. They also contend that this
court has jurisdiction over this action because it arises
under the “Constitution, laws, or treaties of the
federal court has subject matter jurisdiction over civil
cases “arising under the Constitution, laws, or
treaties of the United States, ” and over civil cases
in which the amount in controversy exceeds $75, 000,
exclusive of interest and costs, and in which diversity of
citizenship exists between the parties. 28 U.S.C.
§§ 1331, 1332. Federal courts are courts of limited
jurisdiction and must have statutory or constitutional power
to adjudicate a claim. Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994) (citations omitted);
Home Builders Ass'n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent
jurisdiction conferred by statute or the Constitution, they
lack the power to adjudicate claims and must dismiss an
action if subject matter jurisdiction is lacking.
Id.; Stockman v. Federal Election
Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing
Veldhoen v. United States Coast Guard, 35 F.3d 222,
225 (5th Cir. 1994)). A federal court must presume that an
action lies outside its limited jurisdiction, and the burden
of establishing that the court has subject matter
jurisdiction to entertain an action rests with the party
asserting jurisdiction. Kokkonen, 511 U.S. at 377
(citations omitted). “[S]ubject-matter jurisdiction
cannot be created by waiver or consent.” Howery v.
Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
courts may also exercise subject matter jurisdiction over a
civil action removed from a state court. Unless Congress
provides otherwise, a “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).
of citizenship exists between the parties only if each
plaintiff has a different citizenship from each defendant.
Getty Oil Corp. v. Insurance Co. of North America,
841 F.2d 1254, 1258 (5th Cir. 1988). Otherwise stated, 28
U.S.C. § 1332 requires complete diversity of
citizenship; that is, a district court cannot exercise
jurisdiction if any plaintiff shares the same citizenship as
any defendant. See Corfield v. Dallas Glen Hills LP,
355 F.3d 853, 857 (5th Cir. 2003) (citation omitted).
“[T]he basis upon which jurisdiction depends must be
alleged affirmatively and distinctly and cannot be
established argumentatively or by mere inference.”
Getty, 841 F.2d at 1259 (citing Illinois Cent.
Gulf R.R. Co. v. Pargas, Inc., 706 F.2d 633, 636 n.2
(5th Cir. 1983)). Failure to allege adequately the basis of
diversity mandates remand or dismissal of the action. See
Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir.
1991). A notice of removal “must allege diversity both
at the time of the filing of the suit in state court and at
the time of removal.” In re Allstate Ins. Co.,
8 F.3d 219, 221 (5th Cir. 1993) (quotation marks and
citations omitted). Such failure, however, is a procedural
defect and may be cured by filing an amended notice.
natural person is considered a citizen of the state where he
or she is domiciled, that is, where the person has a fixed
residence with the intent to remain there indefinitely.
See Freeman v. Northwest Acceptance Corp., 754 F.2d
553, 555-56 (5th Cir. 1985). “‘Citizenship'
and ‘residence' are not synonymous.”
Parker v. Overman, 59 U.S. 137, 141 (1855).
“For diversity purposes, citizenship means domicile;
mere residence in [a] [s]tate is not sufficient.”
Preston v. Tenet Healthsystem Mem'l Med. Ctr.,
Inc., 485 F.3d 793, 799 (5th Cir. 2007) (citation and
quotation marks omitted). ...