United States District Court, E.D. Texas
MEMORANDUM AND ORDER
A. CRONE UNITED STATES DISTRICT JUDGE.
before the court is Plaintiffs Jason Champagne and Brandy
Champagne's (collectively, “Plaintiffs”)
Opposed Motion to Remand (#5), wherein they request that the
court remand this action to the 58th Judicial District Court
of Jefferson County, Texas. Plaintiffs argue that Defendant
Amerihome Mortgage Company, LLC (“Amerihome”),
which removed this action to this court on January 14, 2019,
not only failed to meet its burden of establishing complete
diversity of the parties, but also that its Notice of Removal
(#1) was untimely. After considering the motions, the
submissions of the parties, the pleadings, and the applicable
law, the court is of the opinion that Plaintiffs' Motion
to Remand (#5) should be GRANTED.
November 30, 2018, Plaintiffs filed their original petition
in the 58th Judicial District Court of Jefferson County,
Texas, asserting claims for breach of contract, promissory
estoppel, negligent misrepresentation, and violations of the
Texas Deceptive Trade Practices Act and the Texas Debt
Collection Act. It is undisputed that Plaintiffs are citizens
and residents of the State of Texas. It is also undisputed
that Defendant Amerihome is a Delaware limited liability
company, the sole member of which is Aris Mortgage Hold
Company, LLC, which is also a Delaware limited liability
company with one member: A-A Mortgage Opportunities, LP, a
Delaware limited partnership. Amerihome claims that none of
A-A Mortgage Opportunities, LP's partners are citizens of
Texas. Neither party identifies where Amerihome's
principal place of business is located. Although Amerihome
does not address the residency of Defendants Cenlar FSB
(“Cenlar”) and Albertelli Law
(“Albertelli”) in its Notice of Removal (#1), it
claims in later filings that Cenlar, as a federal savings
bank with its home office in New Jersey, is a citizen of New
Jersey, and that Albertelli, as a professional association
incorporated under Florida law with its principal place of
business in Florida, is a resident of Florida. Plaintiffs
argue that they pleaded in their original petition that
Albertelli is a citizen of Texas. Plaintiffs do not contest
Cenlar's New Jersey citizenship.
parties agree that Plaintiffs served their original petition
on Amerihome by mail and that Amerihome received the petition
on December 12, 2018. On January 14, 2019, Amerihome removed
the case to this court on the basis of diversity of
citizenship, alleging that complete diversity exists among
the real parties in interest and that the amount in
controversy exceeds $75, 000.00, exclusive of interest and
costs. On January 24, 2019, Plaintiffs filed a motion to
remand the case to state court, contending that Amerihome
failed to address Albertelli's citizenship and,
therefore, because complete diversity does not exist among
the parties, federal jurisdiction is lacking. Plaintiffs also
contend that Amerihome's Notice of Removal was untimely.
courts are courts of limited jurisdiction.” Gunn v.
Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)); accord Quinn v. Guerrero, 863 F.3d 353, 359
(5th Cir. 2017), cert. denied, 138 S.Ct. 682 (2018);
Hotze v. Burwell, 784 F.3d 984, 999 (5th Cir. 2015),
cert. denied, 136 S.Ct. 1165 (2016); Scarlott v.
Nissan N. Am., Inc., 771 F.3d 883, 887 (5th Cir. 2014).
“They possess only that power authorized by
Constitution and statute, which is not to be expanded by
judicial decree.” Kokkonen, 511 U.S. at 377
(citations omitted). The court “must presume that a
suit lies outside this limited jurisdiction, and the burden
of establishing federal jurisdiction rests on the party
seeking the federal forum.” Settlement Funding,
L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 537
(5th Cir. 2017) (citing Howery v. Allstate Ins. Co.,
243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S.
993 (2001)); accord Hertz Corp. v. Friend, 559 U.S.
77, 96 (2010); Clayton v. Conoco Phillips Co., 722
F.3d 279, 290 (5th Cir. 2013), cert. denied, 571
U.S. 1156 (2014). In an action that has been removed to
federal court, a district court is required to remand the
case to state court if, at any time before final judgment, it
determines that it lacks subject matter jurisdiction.
See 28 U.S.C. § 1447(c); Carlsbad Tech.,
Inc. v. HIF Bio, Inc., 556 U.S. 635, 638 (2009);
Powerex Corp. v. Reliant Energy Servs., Inc., 551
U.S. 224, 231-32 (2007); Grupo Dataflux v. Atlas Glob.
Grp., L.P., 541 U.S. 567, 571 (2004); Spear Mktg.,
Inc. v. BancorpSouth Bank, 791 F.3d 586, 592 (5th Cir.
2015); African Methodist Episcopal Church v. Lucien,
756 F.3d 788, 793 (5th Cir. 2014).
considering a motion to remand, “[t]he removing party
bears the burden of showing that federal jurisdiction exists
and that removal was proper.” Barker v. Hercules
Offshore Inc., 713 F.3d 208, 212 (5th Cir. 2013)
(quoting Manguno v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002)); accord
African Methodist Episcopal Church, 756 F.3d at 793;
Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397
(5th Cir. 2013); see 13E Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure §
3602.1 (3d ed. 2019). “This extends not only to
demonstrating a jurisdictional basis for removal, but also
necessary compliance with the requirements of the removal
statute.” Roth v. Kiewit Offshore Servs.,
Ltd., 625 F.Supp.2d 376, 382 (S.D. Tex. 2008) (citing
Albonetti v. GAF Corp. Chem. Grp., 520 F.Supp. 825,
827 (S.D. Tex. 1981)); accord Hernandez v. State Farm
Lloyds, No. DR-16-CV-164-AM/CW, 2017 WL 8131570, at *2
(W.D. Tex. Sept. 19, 2017); Fort Worth & W. R.R. Co.
v. Stevenson, No. 3:15-CV-0906-B, 2015 WL 3867906, at *1
(N.D. Tex. June 22, 2015). “Only state-court actions
that originally could have been filed in federal court may be
removed to federal court by the defendant.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (citing 28 U.S.C. § 1441(a)); see
Mumfrey, 719 F.3d at 397; In re 1994 Exxon Chem.
Fire, 558 F.3d 378, 395 (5th Cir. 2009).
removal statute ties the propriety of removal to the original
jurisdiction of the federal district courts.” Frank
v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir.
1997); see 28 U.S.C. § 1441(a); Camsoft
Data Sys., Inc. v. S. Elec. Supply, Inc., 756 F.3d 327,
333 (5th Cir. 2014), cert. denied, 135 S.Ct. 1162
(2015); Barker, 713 F.3d at 228. Because removal
raises significant federalism concerns, the removal statutes
are strictly and narrowly construed, with any doubt resolved
against removal and in favor of remand. Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941);
Settlement Funding, L.L.C., 851 F.3d at 536;
African Methodist Episcopal Church, 756 F.3d at 793;
Barker, 713 F.3d at 212. In short, any “doubts
regarding whether removal jurisdiction is proper should be
resolved against federal jurisdiction.” Vantage
Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir.
2014) (quoting Acuna v. Brown & Root Inc., 200
F.3d 335, 339 (5th Cir.), cert. denied, 530 U.S.
1229 (2000)); accord African Methodist Episcopal
Church, 756 F.3d at 793; Barker, 713 F.3d at
courts have subject matter jurisdiction and are authorized to
entertain causes of action only where a question of federal
law is involved or where there is diversity of citizenship
between the parties and the amount in controversy exceeds
$75, 000.00, exclusive of interest and costs. 28 U.S.C.
§§ 1331, 1332; Arbaugh v. Y & H Corp.,
546 U.S. 500, 513 (2006); Lincoln Prop. Co. v.
Roche, 546 U.S. 81, 89 (2005); Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005);
Energy Mgmt. Servs., LLC v. City of Alexandria, 739
F.3d 255, 258-59 (5th Cir. 2014). In order to determine
whether jurisdiction is present in a removed action, the
claims set forth in the state court petition are considered
as of the date of removal. Standard Fire Ins. Co. v.
Knowles, 568 U.S. 588, 594 (2013); Flagg v. Stryker
Corp., 819 F.3d 132, 137 (5th Cir. 2016); Smith v.
Bank of Am. Corp., 605 Fed.Appx. 311, 313-14 (5th Cir.
2015). In removed cases where, as here, there is no
suggestion that a federal question is involved, subject
matter jurisdiction exists only if there is complete
diversity among the parties and the amount in controversy
exceeds $75, 000.00. See 28 U.S.C. § 1332;
Lincoln Prop. Co., 546 U.S. at 89; Exxon Mobil
Corp., 545 U.S. at 552; Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996).
diversity requires that no plaintiff be a citizen of the same
state as any defendant. Exxon Mobil Corp., 545 U.S.
at 552; Lewis, 519 U.S. at 68; Vaillancourt v.
PNC Bank Nat'l Ass'n, 771 F.3d 843, 847 (5th
Cir. 2014). “In cases removed from state court,
diversity of citizenship must exist both at the time of
filing in state court and at the time of removal to federal
court.” Uglunts v. Americare Servs., Inc., No.
3:12-CV-4388-D, 2013 WL 3809681, at *1 (N.D. Tex. July 23,
2013) (quoting Coury v. Prot, 85 F.3d 244, 249 (5th
Cir. 1996)); see Borden v. Allstate Ins. Co., 589
F.3d 168, 171 (5th Cir. 2009). Furthermore, removal is
appropriate only if none of the parties properly joined and
served as a defendant is a citizen of the state in which the
action was brought. African Methodist Episcopal
Church, 756 F.3d at 793; In re 1994 Exxon Chem.
Fire, 558 F.3d at 391; Gasch v. Hartford Accident
& Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007)
(citing 28 U.S.C. § 1441(b)(2)).
challenged on allegations of jurisdictional facts, the
parties must support their allegations by competent
proof.” Hertz Corp., 559 U.S. at 96-97 (citing
McNutt v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189 (1936)). “The court has wide, but not
unfettered, discretion to determine what evidence to use in
making its determination of jurisdiction.”
Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564,
570-71 (5th Cir. 2011) (quoting Coury, 85 F.3d at
249); accord Preston v. Tenet Healthsys. Mem'l Med.
Ctr., Inc. (“Preston II”), 485 F.3d 804, 817
(5th Cir. 2007). “In making a jurisdictional
assessment, a federal court is not limited to the pleadings;
it may look to any record evidence, and may receive
affidavits, deposition testimony or live testimony concerning