United States District Court, E.D. Missouri, Eastern Division
MIMI FOWLER, individually and on behalf of all others similarly situated, Plaintiffs,
BAC HOME LOANS SERVICING, L.P., et al., Defendants.
MEMORANDUM AND ORDER
RONNIE L. WHITE, District Judge.
This matter is before the court on Plaintiff's Motion to Remand ("Motion") (ECF No. 21). This motion is fully briefed and ready for disposition.
On November 4, 2011, Plaintiff Mimi Fowler ("Plaintiff" or "Fowler") and her counsel filed successive class actions in the Circuit Court of St. Louis County, State of Missouri. (ECF No. 23 at 9). Both of these cases involved claims in connection with attorney's fees paid by the class to reinstate Missouri mortgage loans. ( Id. ) In the first case, which was a predecessor to this action, Plaintiff filed claims against BANA, Kozeny & McCubbin, L.C. ("Kozeny"), and other mortgage lenders that had retained Kozeny as their foreclosure counsel and trustee, in connection with fees paid by Fowler in reinstating her mortgage loan. See Mimi Fowler, individually and on behalf of all others similarly situated v. BAC Home Loans Servicing, L.P., et al., Cause No. 11SL-CC04434 (Twenty First Judicial Circuit, St. Louis County, Missouri)(the "Kozeny Class Action"). Plaintiff voluntarily dismissed the Kozeny Class Action without prejudice prior to a hearing on Defendants' summary judgment motion. On or around March 6, 2014, Plaintiff Mimi Fowler re-filed her Petition for Individual and Class Action Relief (hereinafter "Complaint"; ECF No. 5).
Fowler, through her present counsel, also previously filed on November 4, 2011 another putative class action against GMAC, South & Associates, P.C. ("South"), and other mortgage lenders that had retained South as their foreclosure counsel and trustee. See Mimi Fowler, individually and on behalf of all others similarly situated, v. GMAC Mortgage, LLC, South & Associates, P.C., and South Lenders 1-100, Cause No. 11SL-CC004435 (Twenty First Judicial Circuit, St. Louis County, Missouri) ("South Class Action"). (ECF No. 23 at 9). Defendants contend that BANA was one of the mortgage lenders that utilized South as successor trustee for mortgages and that BANA was one of the unnamed "Doe" defendants. ( Id. ) Plaintiff dismissed the South Class Action before identifying the lenders in this group. (ECF No. 23 at 10).
In the present action, the Complaint alleges claims for (1) violation of §443.360, R.S. Mo.; (2) breach of fiduciary duty (against Kozeny); and (3) violation of the Missouri Merchandising Practices Act ("MMPA"). (Notice of Removal, ¶18). Plaintiff alleges that Kozeny, the trustee, and the lender defendants illegally charged, and collected from class members, attorneys' fees in connection with the reinstatement of their mortgages. Plaintiff seeks to represent a class consisting of "[a]ll persons residing in Missouri and not represented by counsel who reinstated their mortgage loan and paid Attorney's Fees in foreclosure proceedings related to Missouri real estate during the period beginning five years before the date this lawsuit was filed to the present." (Complaint, ¶12).
Defendant BANA filed its Notice of Removal on June 19, 2014. (ECF No. 1). In the Notice of Removal, Defendants assert that this Court has jurisdiction pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. §1332(d) ("CAFA"). (ECF No. 1, ¶2). In the Notice of Remand, BANA contends that Fowler cannot meet the "no other class action within three years" requirement of 28 U.S.C. §1332(d)(4)(A)(ii). (Notice, ¶26).
STANDARD FOR REMOVAL/MOTION FOR REMAND
"Removal statutes are strictly construed, and any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand." Manning v. Wal-Mart Stores East, Inc., 304 F.Supp.2d 1146, 1148 (E.D. Mo. 2004) (citing Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th Cir. 1997), cert. denied, 522 U.S. 1075, 139 L.Ed.2d 753, 118 S.Ct. 852 (1998)). The party seeking removal and opposing remand has the burden of establishing jurisdiction. Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys. Operator, 561 F.3d 904, 912 (8th Cir. 2009).
"CAFA authorizes removal of putative class actions commenced' on or after February 18, 2005 if: 1) the amount in controversy exceeds $5, 000, 000 in the aggregate; 2) the citizenship of at least one member of the proposed class is diverse from any defendant; and 3) the proposed class size is not less than 100." Hargis v. Access Capital Funding, LLC, No. 4:09CV604CDP, 2009 WL 2757051, at *1 (E.D. Mo. Aug. 26, 2009) aff'd, 674 F.3d 783 (8th Cir. 2012), citing 28 U.S.C. § 1332(d)(2). In her Motion to Remand, Plaintiff maintains this case must be remanded because it involves a local controversy within the meaning of 28 U.S.C. §1332(d)(4)(A) and because it involves home state parties within the meaning of 28 U.S.C. §1332(d)(4)(B). "It is Plaintiff's burden to prove each element of the CAFA exceptions." Roche v. Aetna Health Inc., No. CIV.A. 13-3933, 2014 WL 1309963, at *3 (D.N.J. Mar. 31, 2014).
A. Local Controversy Exception
"Although complete diversity is not required for the Court to exercise jurisdiction under 28 U.S.C.A. § 1332(d)(2), subsections § 1332(d)(4) requires courts to decline to exercise jurisdiction when greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed." Barfield v. Sho-Me Power Elec. Co-op., No. 11-4321-NKL, 2012 WL ...