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Sweely Holdings, LLC v. Suntrust Bank

United States District Court, W.D. Virginia, Charlottesville Division

March 13, 2015

SWEELY HOLDINGS, LLC, Plaintiff,
v.
SUNTRUST BANK, Defendant.

MEMORANDUM OPINION AND ORDER

NORMAN K. MOON, District Judge.

I.

Because Defendant, SunTrust Bank, is a citizen of the State of Georgia, and the amount in controversy in the matter exceeds $75, 000, Defendant removed this case here from a Virginia state court, based on diversity jurisdiction. Plaintiff, Sweely Holdings, LLC, now moves "for an order quashing the Notice of Removal filed in this case by a third party and dismissing this action pursuant to FRCP 12(h)(3), or in the alternative remanding this matter to the Circuit Court for Madison County on the following grounds" (paragraph numbering and citations omitted):

The named defendant in the state court action is "SunTrust Bank, A Virginia Banking Corporation" described in the Complaint as "an unauthorized Virginia banking corporation that transacted business with Sweely Holdings in 2010 and 2011 in Madison County, Virginia."
The Contract upon which this lawsuit is based is between Sweely Holdings and "SunTrust Bank, A Virginia Banking Corporation."
The party that filed the Notice of Removal is "SunTrust Bank, a Georgia banking corporation, " which is not a named defendant in the state court action. The Notice of Removal and all subsequent filings have a different caption that the style of the state court action, which is Sweely Holdings, LLC v. SunTrust Bank, A Virginia Banking Corporation .
Only a defendant may remove a state court action under 28 U.S.C. 1441(a) and 1446(a).
SunTrust Bank, a Georgia banking corporation is not a defendant and the filing of a Notice of Removal by this entity is improper and legally ineffective. The Notice of Removal offers no explanation as to why it, and not the named defendant, has appeared and made various filings.
The named defendant did not file a Notice of Removal or join in the Notice of Removal. Further, the named defendant has not filed an appearance or responsive pleadings in the state court and is, therefore, in default pursuant to Rule 3:19 of the Rules of the Supreme Court of Virginia.

Plaintiff has submitted a notice that the motion "is ripe for a decision on the merits and that neither party requests a hearing on this Motion."

As Plaintiff's motion relies on little more than semantics, it must be denied.

II.

Plaintiff relies on an incorrect description of SunTrust Bank as a Virginia entity in one of a series of commercial lending documents between Plaintiff and SunTrust. However, in the other lending documents at issue, SunTrust is correctly described as "a Georgia banking corporation." As stated in its notice of removal,

SunTrust is a Georgia banking corporation, chartered and organized under the laws of the State of Georgia, with its principal place of business and nerve center located in Atlanta, Georgia. As a result, SunTrust is a citizen of the State of Georgia. See, Affidavit of William W. Teegarden [a senior vice president of SunTrust] attached hereto as Exhibit C and incorporated herein by reference explaining, among other things, that SunTrust's high level officers direct, control and coordinate SunTrust's activities from Atlanta, Georgia. See Hertz Corp. v. Friend, 559 U.S. 77, 80-81 (2010) (holding that for diversity, a corporation's principal place of business is its "nerve center"); Hoschar v. Appalachian Power Co., No. 12-2482 (4th Cir. Jan. 7, 2014) (finding defendant's nerve center to be located in Columbus, Ohio despite website ...

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