United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
MATTER comes now before the Court upon the Motion to Dismiss
by pro se Defendant Angel Rivera (Doc. No. 5).
Before considering the Motion to Dismiss the Court considers
sua sponte the issue of subject matter jurisdiction.
By Notice of Removal, Defendant claims this Court has
jurisdiction under diversity of citizenship pursuant to
§ 1332(a)(1) and § 1332 (c)(1) (Doc. No. 1). For
the reasons stated below, removal of this case on the basis
of diversity of citizenship is improper and pursuant to
§ 1447(c) this case is REMANDED to the Mecklenburg
County Civil Superior Division.
to the Complaint, Plaintiff Mortgage Guaranty Insurance
Corporation is a corporation engaged in the business of
providing private mortgage insurance for the benefit of
mortgage lenders. (Doc. No. 1-1, p. 3). Plaintiff is
organized and incorporated in the State of Wisconsin and
licensed as an insurance company by the State of North
Carolina. Id. Defendant is an adult individual and
resident of Mecklenburg County, North Carolina. Id.
at 17. On or about March 19, 2008, Sue Hicks in her capacity
as authorized agent for Defendant signed and delivered a
promissory note to Bank of America, N.A.
(“Lender”), stating Defendant promised to pay
Lender the principal amount of $157, 500 plus interest at an
annual rate of 6.625%, in monthly installments. Id.
alleges Defendant defaulted under the terms of the Note.
(Doc. No. 3-1, p. 1). The Substitute Trustee initiated
foreclosure proceedings, and at public auction on March 27,
2018, Lender was the highest and last bidder for the
Property, bidding $209, 900. (Doc. No. 1-1, p. 4). Plaintiff
(as the insurer) provided private mortgage insurance to and
for the benefit of the Note Holder (the insured) with respect
to the Note and the Deed of Trust, issuing a policy of
mortgage guarantee insurance that protected the Note Holder
in the event of default by the borrower. Id. at 5.
Bank of America, N.A. was the Note Holder as of March 27,
2018. Id. at 4. On or about April 24, 2018, the Note
Holder filed a claim for loss against Plaintiff. Id.
at 5. The Complaint indicates the claim for loss was $254,
400.84. Id. at 16.
crediting all payments and credits to which Defendant may be
entitled, Plaintiff maintains the balance due and owing on
the Note to be $35, 597.54 as of March 27, 2018. Id.
Plaintiff asserts that as the insurer, Plaintiff was required
to pay, and did pay, a payment to the Note Holder (the
insured) in an amount greater than $35, 597.54 in connection
with the loss (Doc. No. 5, p. 4). Pursuant to the terms of
the policy, Plaintiff posits it was subrogated to the rights
of the Note Holder (the insured), including the right to
collect from Defendant the $35, 597.54 “Deficiency
Balance.” Id. Defendant alleges that pursuant
to the Deed of Trust they were obligated “to pay the
premiums required to maintain the mortgage in effect, ”
and challenges Plaintiff's right to recover the
“Deficiency Balance” (Doc. No. 3, p. 2).
Defendant was a resident of Cabarrus County, Plaintiff filed
its complaint in the General Court of Justice Superior Court
for Cabarrus County, North Carolina on January 22, 2019,
seeking a deficiency judgment of $35, 597.54 plus interest at
the rate of 6.625% per annum from and after March 27, 2018
until paid, plus costs of this action. Id. at 1.
Defendant was served the Summons and Complaint on March 5,
2019. Plaintiff, on March 8, 2019, made a motion pursuant to
Rule 12(b)(3) of the Federal Rules of Civil Procedure and
N.C. Gen. Stat. § 1-83 for an Order to change venue from
Cabarrus County to Mecklenburg County, where Defendant is now
a resident (Doc. No. 1-1, p. 17). Defendant filed timely
notice of removal on April 4, 2019 (Doc. No. 1).
STANDARD OF REVIEW
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(a).
Defendant asserts that this Court has original subject matter
jurisdiction solely on the basis of diversity of citizenship
under § 1332(a) (Doc. No. 1). When subject matter
jurisdiction is based on diversity of citizenship,
“[(1)] no plaintiff may be a citizen of the same state
as any defendant, and [(2)] the amount in controversy must
exceed $75, 000, exclusive of interest and costs.”
Elliott v. Am. States Ins. Co., 883 F.3d 384, 394
(4th Cir. 2018) (citing 28 U.S.C. § 1331(a)(1)).
Further, “[t]he party seeking removal bears the burden
of establishing federal subject matter jurisdiction.”
Jones v. Wells Fargo Co., 671 Fed.Appx. 153, 154
(4th Cir. 2016); Hoshar v. Appalachian Power Co.,
739 F.3d 163, 169 (4th Cir. 2014).
consideration of “well-established federalism concerns,
removal jurisdiction must be strictly construed.”
Jones, 671 Fed.Appx. at 154. Thus, 28 U.S.C. §
1447(c) provides, “[i]f at any time before final
judgement it appears that the district court lacks subject
matter jurisdiction the case shall be remanded.”
See also Dixon v. Coburg Dairy, Inc., 369 F.3d 811,
816 (4th Cir. 2004) (per curiam) (declaring “if federal
jurisdiction is doubtful, a remand to state court is
necessary”). Therefore, pursuant to 28 U.S.C. §
1447(c), “[t]he objection that a federal court lacks
subject-matter jurisdiction . . . may be raised by a party,
or by a court on its own initiative, at any stage in
the litigation.” Arbaugh v. Y&H Corp., 546
U.S. 500, 506 (emphasis added).
determining whether this Court has subject matter
jurisdiction, the citizenship of the parties will first be
analyzed. If the parties are determined to be completely
diverse, this analysis will then examine whether the amount
in controversy exceeds $75, 000, exclusive of interest and
purposes of diversity of citizenship, “a corporation
shall be deemed to be a citizen of every State and foreign
state by which it has been incorporated and of the State or
foreign state where it has its principal place of
business.” 28 U.S.C. § 1332(c)(1). In determining
a corporation's principal place of business, the Supreme
Court held in Hertz Corp. v. Friend that principal
place of business “refers to the place where the
corporation's high level officers direct, control, and
coordinate the corporation's activities, ”
otherwise known as its “nerve center” 559 U.S.
77, 80 (2010).
are citizens where they are “legally domiciled.”
Sun Printing & Publ'g Ass'n v. Edwards,
194 U.S. 377, 382 (1904). In determining an individual's
domicile, courts may consider factors such as “the
person's declarations, place of business, payment of
taxes, house of residence, driver's license and
automobile registration and title, ownership of real and