United States District Court, D. Nebraska
ORDER AND FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge
matter is before the Court on Plaintiff's Motion to
Remand to State Court (Filing No. 18) and the Motion
for Leave to Amend Notice of Removal (Filing No. 21)
filed by Defendants LBUBS 2004-C2 Cranberry Retail GP, LLC
(“LBUBS GP”) and LNR Partners, LLC
(“LNR”). The Court will grant Defendants'
motion to amend their notice of removal and recommend that
Plaintiff's motion to remand be denied.
filed this action against Defendants in the District Court of
Lancaster County, Nebraska, seeking $680, 323.22 in alleged
overpayments on a loan. (Filing No. 1-2). On August
28, 2018, Defendants LBUBS GP and LNR removed the action to
this court on the basis of diversity jurisdiction pursuant to
28 U.S.C. §§ 1332 and 1441. (Filing No.
1). On October 25, 2018, Plaintiff filed an Amended
Complaint adding additional claims against Defendants as well
as the instant motion to remand. (Filing No. 17;
Filing No. 18). Plaintiff argues remand is necessary
because Defendants failed to establish that complete
response to Plaintiff's motion to remand, LBUBS GP and
LNR filed the instant motion to amend their Notice of Removal
“for the sole purpose of providing additional detail
regarding the identity of each LLC member between LNR and
[Starwood Property Trust, Inc].” Defendants assert
their amended notice of removal “does not otherwise
differ from the original notice of removal or affect whether
diversity jurisdiction existed at the time of removal.”
(Filing No. 22). Plaintiff did not file a brief in
opposition to Defendants' motion for leave to amend.
the thirty-day period for seeking removal expires, a notice
of removal “may be amended to add specific facts which
further explain the grounds for removal stated in the
original removal notice, but not to add a completely new
basis for removal jurisdiction.” McNerny v.
Nebraska Pub. Power Dist., 309 F.Supp.2d 1109, 1115 (D.
Neb. 2004)(citing Lastih v. Elk Corp., 140 F.Supp.2d
166 (D. Conn. 2001). Defendants removed this case on the
basis of diversity jurisdiction and now request leave to
amend their Notice of Removal to clarify the citizenship of
LNR to further support their removal based on diversity
jurisdiction. Plaintiff did not oppose the motion. Because
Defendants do not request to add a new basis for removal
jurisdiction and seek only to clarify the original basis for
removal, the Court will grant Defendants' motion. The
Court will consider Defendants' Amended Notice of Removal
(Filing No. 21-1) for purposes of Plaintiff's
motion to remand.
28 U.S.C. § 1332(a), district courts have original
diversity jurisdiction over civil actions when the matter in
controversy exceeds $75, 000, without considering interest
and costs, and when the citizenship of each plaintiff is
different from the citizenship of each defendant.”
Ryan v Schneider Nat'l Carriers, Inc., 263 F.3d
816, 819 (8th Cir. 2001)(citing Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996)). In this case, there is
no dispute that the amount in controversy is met, as
Plaintiff is seeking $680, 323.22 in damages. (Filing No.
1-1; Filing No. 17). Instead, Plaintiff asserts
that Defendants have not established that complete diversity
exists because LBUBS GP and LNR did not identify the
citizenship of each of their members. (Filing No.
19). After review of the pleadings and Defendants'
corporate disclosures, the undersigned concludes that
Defendants have demonstrated complete diversity of the
Misle Properties, LLC, does not dispute that it is a citizen
of Nebraska. Plaintiff's sole member is ABRAM, LLC, a
limited liability company organized under Nebraska law, and
ABRAM, LLC's sole member is Helen Misle, a citizen of the
state of Nebraska. See Filing No. 21-1; OnePoint
Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir.
2007)(“An LLC's citizenship, for purposes of
diversity jurisdiction, is the citizenship of each of its
has demonstrated that LBUBS GP, LLC, is a citizen of the
state of South Dakota. LBUBS GP's sole member is Wells
Fargo Bank, N.A., “as Trustee for the Registered
Holders of LB-UBS Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series
2004-C2, ” which is a “real estate mortgage
investment conduit” (“REMIC”).
the trustee's citizenship is relevant for diversity
purposes.” BancorpSouth Bank v. Hazelwood Logistics
Ctr., LLC, 706 F.3d 888, 894 (8th Cir. 2013)(citing
Navarro Savings Association v. Lee, 446 U.S. 458,
469 (1980)); see also WBCMT 2007-C33 NY Living, LLC v.
1145 Clay Ave. Owner, LLC, 964 F.Supp.2d 265, 269
(S.D.N.Y. 2013)(citing Carden v. Arkoma Assocs., 494
U.S. 185, 191 (1990))(“When . . . an LLC's sole
member is a trustee, the LLC's membership is determined
by the citizenship of the trustee alone.”). The Amended
Notice of Removal and LBUBCS GP's corporate disclosure
statement provide that Wells Fargo Bank, N.A. is a national
banking association and that its articles of association
designate South Dakota as its main office. (Filing No.
3; Filing No. 21-1). “A national bank is
a citizen of the State in which its main office, as set forth
in its articles of association, is located.”
Buffets, Inc. v. Leischow, 732 F.3d 889, 897 (8th
Cir. 2013)(citing Wells Fargo Bank, N.A. v. WMR e-PIN,
LLC, 653 F.3d 702, 710 (8th Cir. 2011)). Accordingly,
LBUBS GP is a citizen of the state of South Dakota.
argues that LNR identified in its corporate disclosure
statement that it has a parent corporation which is a trust
but did not identify the citizenship of each of the members.
(Filing No. 19). Thereafter, Defendant filed an
amended corporate disclosure statement (Filing No.
23) and the amended notice of removal that identifies
the citizenship of all members of LNR through its parent
corporation, Starwood Property Trust, Inc.
(“SPT”). None of the members are citizens of
Nebraska, and instead demonstrate that LNR is a citizen of
Maryland and Connecticut. See Filing No. 21-1 at pp. 4-5;
Filing No. 23.
as to Defendants Roe, Inc. r/n/u and Doe, LLC r/n/u,
“the citizenship of defendants sued under fictitious
names shall be disregarded” for purposes of determining
whether an action is removable on the basis of diversity
jurisdiction. 28 U.S.C. § 1441(b).
the undersigned magistrate judge finds that the amount in
controversy is at least $75, 000 and that Defendants'
Amended Notice of Removal and Corporate Disclosure Statements
establish complete diversity of the parties. Therefore, the
undersigned concludes this court has jurisdiction under 28
U.S.C. § 1332(a), and that Plaintiff's motion to
remand should therefore be denied. Upon consideration,
IT IS ORDERED: Defendants' Motion for
Leave to Amend Notice of Removal (Filing ...