United States District Court, D. Nebraska
DONALD K. EVERSON and KIMBERLY C. EVERSON, Husband and Wife, Plaintiffs,
OCWEN LOAN SERVICING, LLC, as Servicing Agent for the Deed of Trust; DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for CDC Mortgage Capital Trust 2002-He1, Mortgage Pass-Through Certificates, Series 2002-He1, Successor to HomeGold, Inc.; and EDWARD E. BRINK, as Successor Trustee for the Deed of Trust, Defendants.
MEMORANDUM AND ORDER
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant Edward E. Brink's
(“Brink”) Request to be Removed as Defendant of
Record (Filing No. 9). For the reasons stated below, this
case is remanded to the District Court of Sarpy County,
Nebraska (“Sarpy District Court”), for lack of
subject matter jurisdiction, and the Request is denied as
Donald K. Everson and Kimberly C. Everson (collectively the
“Eversons”) are Nebraska citizens who own a piece
of property, subject to a deed-of-trust and promissory note,
in Sarpy County, Nebraska. Deutsche Bank National Trust
Company (“Deutsche”) is the current holder of the
property's deed-of-trust and promissory note. Ocwen Loan
Servicing, LLC (“Ocwen”) services the loan.
Brink, also a Nebraska citizen, is the trustee for the
property's deed-of-trust, and he scheduled a
trustee's sale of the property after filing a notice of
default in the Sarpy County deed records.
Eversons filed suit in Sarpy District Court against Deutsche,
Ocwen, and Brink on January 27, 2017. The Eversons claimed
that Ocwen had committed various misdeeds while servicing the
loan, and they requested damages and an injunction
prohibiting the trustee's sale.
defendants removed the case to this Court. Although the
parties were facially non-diverse, the defendants claimed
that Brink was fraudulently joined and the remaining
defendants were diverse. Brink moved to dismiss himself as a
party, claiming he was fraudulently joined. On March 17,
2017, this Court (1) denied Brink's motion because the
Eversons had alleged a colorable claim against Brink and (2)
remanded the case to Sarpy District Court. Everson v.
Deutsche Bank Nat'l Trust Co., No. 8:17CV35, 2017 WL
1047314, at *2 (D. Neb. March 17, 2017).
remand, Brink filed a disclaimer of interest with the Sarpy
District Court and moved to be dismissed as a party. After
holding a hearing on the matter, the Sarpy District Court
granted the motion. Following Brink's dismissal as a
party, Ocwen and Deutsche removed the case to federal court,
attempting for the second time to evade the Everson's
choice of forum. Brink subsequently requested to be removed
as a defendant of record.
is entirely a creature of statute and ‘a suit commenced
in a state court must remain there until cause is shown for
its transfer under some Act of Congress.'”
Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32
(2002) (quoting Great Northern R. Co. v. Alexander,
246 U.S. 276, 280 (1918)). The relevant Act of Congress
allows civil actions brought in state court to be transferred
to federal court when the federal district court would have
original jurisdiction over the case. 28 U.S.C. §
1441(a). Because this case involves only state law claims,
the only way this Court could have original jurisdiction
would be through complete diversity. See 28 U.S.C.
the case of a removed action, diversity [of citizenship] must
exist both when the state petition is filed and when the
petition for removal is filed.” Knudson v. Sys.
Painters, Inc., 634 F.3d 968, 976 (8th Cir. 2011)
(alteration in Knudson) (quoting Ryan ex. rel.
Ryan v. Schneider Nat'l Carriers, Inc., 263 F.3d
816, 819 (8th Cir. 2001)). There are two main exceptions to
this rule. Id. The first exception occurs when
“the plaintiff voluntarily dismisses the
diversity-destroying defendant.” Id. The
second exception occurs when the defendant who destroys
diversity is fraudulently joined. Id. at 976.
Eversons and Brink are all citizens of
Nebraska. Thus, Brink's status as a party when
the state petition was filed precludes diversity jurisdiction
unless an exception applies. The first exception does not
apply because Brink's dismissal was not
“accomplished by the voluntary amendment of [their]
pleadings by the plaintiff[s].” Alexander, 246
U.S. at 281. Brink was involuntarily dismissed by his own
motion, not because of any amendment by the Eversons. See
Knudson, 634 F.3d at 976 (explaining that a dismissal is
involuntary if the defendant initiates the dismissal). The
second exception does not apply because this Court has
already determined that Brink's joinder was not
fraudulent. Because neither exception applies, nor have Ocwen
and Deutsche identified any others, this Court does not have
jurisdiction over the removed action.
at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447. This Court
possesses the authority to make this determination sua
sponte. In re Atlas Van Lines, Inc., 209 F.3d 1064,
1066 (8th Cir. 2000). Because the parties were not diverse at
the time of filing, this Court lacks subject-matter
jurisdiction over the case. Accordingly, IT IS ORDERED:
Defendant Brink's Request to be Removed as Defendant of