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Ditech Financial LLC v. Smith

United States District Court, W.D. Pennsylvania

October 17, 2017

DITECH FINANCIAL LLC, Plaintiff,
v.
GUY SMITH, Defendant.

          MEMORANDUM OPINION

          KIM R. GIBSON UNITED STATES DISTRICT JUDGE

         I. Introduction

         Presently before this Court is Plaintiff's Motion for Remand to the Monroe County Court of Common Pleas. (ECF No. 2.) For the reasons stated below, Plaintiff's motion will be GRANTED.

         II. Background

         Plaintiff initiated this foreclosure action by filing a complaint in the Court of Common Pleas of Monroe County Pennsylvania, on June 28, 2016. (See ECF No. 2-1.) After several failed attempts to serve process on Defendant (see Id.), Defendant was served with process in early October, 2016.[1] (See Id.)

         Defendant removed the case to this Court on November 17, 2016, on the basis of diversity of citizenship jurisdiction. (Id.) Defendant states that he "is a citizen of the State of Pennsylvania." (ECF No. 1 at 4.)

         III. Legal Standard

         "Section 1441 of Title 28, United States Code, governs the removal of a case to federal court." Smoyer v. Care One, LLC, No. 2:16-CV-1696, 2017 WL 575070, at *1 (W.D. Pa. 2017), report and recommendation adopted, No. 2:16-CV-1696, 2017 WL 573573 (W.D. Pa. 2017); Kosicki v. Nationstar Mortg., LLC, 947 F.Supp.2d 546, 552 (W.D. Pa. 2013) (same).

         A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441. "Subject matter jurisdiction may be based upon federal question or diversity grounds." In Re Plavix Prod, Liab. & Mktg. Litig., No. 3-.13-CV-03610-FLW, 2014 WL 4954654, at *2 (D. N.J. 2014), citing 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 1332 (diversity jurisdiction). Under diversity jurisdiction, federal district courts have original jurisdiction in civil actions between citizens of different States where the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332.

         Removal is improper if it violates the "forum defendant rule" contained in Section 1441(b). See Swindell-Filiaggi v. CSX Corp., 922 F.Supp.2d 514, 517 (E.D. Pa. 2013). Under the forum defendant rule:

A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1441(b)(2). "Therefore, the forum defendant rule prohibits removal based on diversity where a defendant is a citizen of the forum state-the state in which the plaintiff originally filed the case." In Re Plavix Prod. Liab. & Mktg. Litig., No. 3:13-CV-03610-FLW, 2014 WL 4954654, at *3 (D. N.J. Oct. 1, 2014). j The forum defendant rule reflects the fact "that the rationale for diversity jurisdiction no longer exists when one of the defendants is a citizen of the forum state i since the likelihood of bias is reduced, if not eliminated." Stunteback v. Janssen Research & Dev., LLC, No. CIV.A. 14-1097, 2014 WL 2572784, at *2 (E.D. Pa. 2014), quoting Allen v. GlaxoSmithKline PLC, No. 07-5045, 2008 WL 2247067, at *4 (E.D. Pa. 2008); see also In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 624 F.Supp.2d 396, 409 (E.D. Pa. 2009) (noting that "the rule prohibits removal on diversity grounds of an action involving a properly joined and served instate defendant whose presence in the action presumably reduces or eliminates the risk of prejudice against the defense.").

         "The burden of establishing federal jurisdiction rests with the party asserting its existence." Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (internal citations omitted). "[R]emoval statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir. 2014), quoting Batoffv. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir.1992) (internal quotations and citations omitted); Morocco v. Hearst Stations, Inc., No. 2:16-CV-1083, 2016 WL 4447798, at *2 (W.D. Pa. 2016) (same). A case that is removed to district court shall be remanded to state court "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c).

         IV. ...


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