United States District Court, W.D. Michigan, Southern Division
JANET T. NEFF
REPORT AND RECOMMENDATION
S. CARMODY UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion to
Dismiss, (ECF No. 10), and Plaintiff's Motion to
Remand, (ECF No. 11). In accordance with 28 U.S.C.
§ 636(b), authorizing United States Magistrate Judges to
submit proposed findings of fact and recommendations for
resolution of dispositive motions, the undersigned recommends
that Plaintiff's motion be denied,
Defendant's motion be granted, and this
initiated the present action on or about June 26, 2017, in
Eaton County Circuit Court against Bank of America, N.A. and
10 unidentified John Does, none of whom have been identified
or served. (ECF No. 1 at PageID.9-32). On July 17, 2017, Bank
of America removed the matter to this Court. This action
concerns real property located at 424 East Main Street,
Potterville, Michigan. (ECF No. 1 at PageID.12). On or about
March 17, 2006, Plaintiff obtained a loan from Bank of
America in the amount of one hundred thirty-four thousand,
four hundred dollars ($134, 400.00) and as security for this
loan, Plaintiff executed a mortgage on the property in
question. (ECF No. 1 at PageID.34-48). On August 9, 2012,
Bank of America assigned the mortgage on Plaintiff's
property to Nationstar Mortgage, LLC. (ECF No. 1 at
PageID.50). Plaintiff subsequently defaulted on his mortgage
and the subject property was sold at auction.
herein asserts numerous causes of action. However, this is at
least the third lawsuit Plaintiff has initiated regarding the
foreclosure and sale of the aforementioned property. See
Barnhart v. Nationstar Mortgage, LLC, 1:15-cv-627 (W.D.
Mich.); Barnhart v. Nationstar Mortgage, LLC,
1:17-cv-302 (W.D. Mich.). Bank of America, N.A. now moves to
dismiss Plaintiff's claims on res judicata grounds.
Plaintiff has responded by moving to remand this matter to
state court. For the reasons discussed herein, the
undersigned recommends that Plaintiff's motion to remand
be denied and Defendant's motion to dismiss be granted.
The undersigned further recommends that Plaintiff's
claims against the 10 unidentified John Does be dismissed for
failure to timely effect service.
Plaintiff's Motion to Remand
argues that this matter must be remanded to state court
because there does not exist complete diversity between the
parties. Specifically, Plaintiff argues that he and Bank of
America, N.A. are both Michigan citizens thereby destroying
diversity. Plaintiff is mistaken.
district courts have original jurisdiction of all civil
actions "arising under the Constitution, laws, or
treaties of the United States" as well as actions where
the amount in controversy exceeds $75, 000 and is between
citizens of different states. 28 U.S.C. Â§' 1331, 1332.
Any civil action asserted in a state court over which a
federal district court has original jurisdiction, "may
be removed by the defendant. . .to the district court of the
United States for the district and division embracing the
place where such action is pending." 28 U.S.C. §
1441(a). Defendant, as the party seeking removal, "bears
the burden of demonstrating federal jurisdiction, and all
doubts should be resolved against removal." Harnden
v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007).
assessing whether there exists complete diversity between the
parties, the citizenship of the John Doe defendants is
disregarded. See 28 U.S.C. § 1441(b)(1)
(“[i]n determining whether a civil action is removable
on the basis of [diversity], the citizenship of defendants
sued under fictitious names shall be disregarded”);
Howell v. Tribune Entertainment Co., 106 F.3d 215,
(7th Cir. 1997) (“naming a John Doe defendant will not
defeat the named' defendants' right to remove a
diversity case if their citizenship is diverse from that of
the plaintiffs”). Thus, the question is simply whether
Defendant Bank of America, N.A. is diverse from Plaintiff.
alleges that he is a citizen of Michigan. (ECF No. 1 at
PageID.12). Defendant Bank of America, N.A. is a national
which, for diversity jurisdiction purposes, is considered to
be a citizen of the state in which its primary place of
business is located. See Wachovia Bank v. Schmidt,
546 U.S. 303, 318 (2006); Hargrow v. Wells Fargo Bank,
N.A., 491 Fed.Appx. 534, 536 (6th Cir., July 3, 2012)
(same). Bank of America, N.A. has its primary place of
business in North Carolina. (ECF No. 14). Accordingly, there
exists complete diversity in this matter. The undersigned,
therefore, recommends that Plaintiff's motion to remand
Defendant's Motion to Dismiss
12, 2015, Plaintiff filed a lawsuit against Nationstar
Mortgage and ten unidentified John Does alleging various
claims concerning the property identified above. Barnhart
v. Nationstar Mortgage LLC, case no. 1:15-cv-627 (W.D.
Mich.). Plaintiff's claims were subsequently dismissed
for failure to ...