United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Johnny Lee Duwe's
Motion to Remand (Doc. 11), and Defendant Bank of America,
N.A. (“BANA”)'s Motion to Dismiss (Doc. 12).
Duwe has also filed a Motion to Amend (Doc. 23), Motion to
Add Parties (Doc. 24), and Motion to Strike (Doc. 29), in
response to BANA's Motion to Dismiss. This case has been
assigned to the undersigned United States Magistrate Judge
pursuant to the Civil Justice Reform Act and is being heard
by consent of the parties. See 28 U.S.C. §
November 9, 2016, Duwe filed a “Petition for Injunctive
Relief & Redress of Grievances”
(“Petition”) in the Circuit Court of Ste.
Genevieve County, Missouri, seeking to enjoin a foreclosure
sale and naming as Defendants Bank of American, N.A.
(“BANA”) and Millsap & Singer, P.C.
(“Millsap”). (Doc. 5.) Duwe alleges that the
foreclosure sale, which occurred on November 10, 2016, was
based on fraud. He contends that he “served various
communications” upon Defendants “contesting the
validation of the alleged debt, ” but Defendants failed
to produce the requested documents. Id. at p. 2.
diversity was lacking on the face of the Petition as
Plaintiff Duwe and Defendant Millsap are both citizens of the
State of Missouri. BANA removed the case to federal court on
the basis of diversity jurisdiction, 28 U.S.C. §
1332(a)(1), claiming that Millsap was a nominal party
fraudulently joined to defeat diversity, whose citizenship
should be disregarded for purposes of diversity jurisdiction.
(Doc. 1.) BANA is a national banking association with its
principal place of business and main office, as set forth in
its articles of association, in the State of North Carolina.
Id. at p. 2. BANA is therefore a citizen of North
Carolina. See 28 U.S.C. § 1348; Wachovia
Bank v. Schmidt, 546 U.S. 303, 307 (2006) (“a
national bank, for ' 1348 purposes, is a citizen of the
State in which its main office, as set forth in its articles
of association, is located”).
filed a Motion to Remand, in which he argues that
Millsap's citizenship should be considered, and disputes
that the amount of controversy requirement is met. (Doc. 11.)
BANA opposes Duwe's Motion to Remand. (Doc. 20.)
same date, BANA filed a Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), which Duwe opposes. (Docs.
12, 19.) Duwe subsequently filed a Motion to Amend his
Petition (Doc. 23), Motion to Add Parties (Doc. 24), and
Motion to Strike Defendants' Response to his Motion to
Amend (Doc. 29).
Court will address the pending motions in turn, beginning
with Duwe's Motion to Remand.
Motion to Remand
propriety of removal to federal court depends on whether the
claim comes within the scope of the federal court's
subject matter jurisdiction.” Peters v. Union
Pacific R. Co., 80 F.3d 257, 260 (1996) (citing 28
U.S.C. § 1441(b)). “A claim may be removed only if
it could have been brought in federal court
originally.” Id. “Critically, the party
seeking removal has the burden to establish federal subject
matter jurisdiction; all doubts about federal jurisdiction
must be resolved in favor of remand.” Central Iowa
Power Co-op. v. Midwest Indep. Transmission Sys.
Operator, Inc., 561 F.3d 904, 912 (8th Cir.
2009) (internal citation and cited case omitted). To invoke
the district court's original diversity jurisdiction, the
parties must be citizens of different states and the amount
in dispute must exceed $75, 000. 28 U.S.C. § 1332(a).
Diversity of Citizenship
diversity jurisdiction to exist under 28 U.S.C. §
1332(a)(1), there must be complete diversity of citizenship
between plaintiffs and defendants. Buckley v. Control
Data Corp., 923 F.2d 96, 97, n.6 (8th Cir. 1991).
“It is settled, of course, that absent complete
diversity a case is not removable because the district court
would lack original jurisdiction.” Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 564
(2005) (cited case omitted). Where complete diversity of
citizenship does not exist, 28 U.S.C. § 1447(c) requires
a district court to remand the case to state court for lack
of subject matter jurisdiction.
determining whether complete diversity of citizenship exists,
a federal court “must disregard nominal or formal
parties and rest jurisdiction only upon the citizenship of
real parties to the controversy.” Navarro Sav.
Ass'n v. Lee, 446 U.S. 458, 460-61 (1980).
“Nominal parties are generally those without a real
interest in the result of the suit or an ownership interest
in the funds at issue, or those named merely as the holder of
the stakes between the plaintiff and the defendant.”
Caranchini v. Kozeny & McCubbin, LLC, 2011 WL
5921364, at *3 (W.D. Mo. Nov. 28, 2011). “The
‘real party in interest' is the person who, under
governing substantive law, is entitled to enforce the right
asserted, and in a diversity case, the governing substantive
law is ordinarily state law[.]” Iowa Pub. Serv. Co.
v. Medicine Bow Coal Co., 556 F.2d 400, 404 (8th Cir.
1977). “A defendant's citizenship may be
disregarded when it is clear that the defendant (1) is
neither necessary nor indispensable, (2) has no stake in the
litigation, and (3) has no real, present claims for relief
sought against it.” Mundle v. Linde, LLC, 2011
WL 1526965, at *2 (E.D. Mo. Apr. 20, 2011); see 15
James Wm. Moore, et al., Moore's Federal
Practice § 102.15 (3d ed. 2013).
Court must therefore determine whether Millsap is a nominal
party whose citizenship must be disregarded for purposes of
diversity jurisdiction or was fraudulently joined in this
Petition alleges by implication that Millsap is the trustee
that conducted the foreclosure sale. In his Motion to Remand,
Duwe contends that he “rescinded” the loan
documents due to fraud but Millsap “proceeded with the
unlawful foreclosure sale in spite of said rescission and
declaration.” (Doc. 11 at p. ...