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The Bank of New York Mellon v. Grewal

United States District Court, N.D. Texas, Dallas Division

April 8, 2019

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,
v.
RANDIP GREWAL; REGINAL PERKINS; PARVINDER GREWAL; and All Occupants of 1211 Harbor Dune Ct Irving, TX 75063, Defendants.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge.

         Before 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).

         I. Background

         Plaintiff 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.

         Mellon 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.

         Following 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.

         The 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.

         Mellon 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.

         Defendants 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 United States.”

         II. Jurisdictional Standard

         A 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).

         Federal 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).

         Diversity 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. Id. n.4.

         A 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). ...


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