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Branch Banking and Trust Company v. Okay

United States District Court, E.D. Virginia, Alexandria Division

August 23, 2016

BRANCH BANKING & TRUST CO., Plaintiff,
v.
CHRISTOPHER M. OKAY, Defendant.

          MEMORANDUM OPINION

          JAMES C. CACHERIS ALEXANDRIA UNITED STATES DISTRICT COURT JUDGE

         This matter is now before the Court on Defendant Christopher M. Okay’s (“Defendant” or “Okay”) Motion to Dismiss for Improper Venue, or in the Alternative, Transfer the Action[1][Dkt. 2], and Plaintiff Branch Banking and Trust Company’s (“Plaintiff” or “BB&T”) Motion to Remand [Dkt. 6]. For the following reasons, the Court denies Defendant’s Motion to Dismiss for Improper Venue, denies Plaintiff’s Motion to Remand, grants Defendant’s Motion to Transfer, and transfers the action to the Western District of Virginia, Harrisonburg Division.

         I. Background

         At the motion to dismiss stage, the Court must read the complaint as a whole, construe the complaint in a light most favorable to the plaintiff, and accept the facts alleged in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         The following facts, taken from Plaintiff’s Complaint [Dkt. 1-4], Plaintiff’s Amended Complaint [Dkt. 11], Defendant’s Notice of Removal [Dkt. 1], and the parties’ briefs are taken as admitted only for purposes of the motions now before the court.

         On or about August 22, 2007, Defendant and Former Defendant Priscilla M. Okay submitted a retail loan application seeking a line of credit from Plaintiff in the amount of $101, 000.00. (Compl., ¶ 4.) Plaintiff is a banking corporation with its principle offices in Winston-Salem, North Carolina. (Notice of Removal, ¶ 12.) The Application was approved and Plaintiff granted Defendant and Priscilla M. Okay a line of credit with the maximum credit limit of $101, 000.00. (Compl. at ¶ 5.) This loan is evidenced by a BB&T Tax Advantage Credit Line Agreement and Initial Disclosure Statement (the “Tax Advantage Credit Line”). (Id. at ¶ 6.) At the time the parties entered into the Tax Advantage Credit Line, Defendant was employed by Plaintiff as an attorney at its corporate headquarters in Winston-Salem, North Carolina. (Def.’s Mem. in Supp. [Dkt. 3], at 2.) The loan was secured by a security interest in real property and improvements at 216 Hollow Tree Court, Winston-Salem, North Carolina 27127 (the “Hollow Tree Property”) for the benefit of Plaintiff. (Compl., ¶ 8.) Plaintiff’s security interest was recorded among the Land Records of Davidson County, North Carolina as a Deed of Trust. (Id.)

         By October 14, 2014, Defendant had entered into default on the Tax Advantage Line of Credit and Plaintiff notified him that failure to cure the default could result in acceleration of the entire balance due. (Id. at ¶ 10.) On April 1, 2015, Plaintiff notified Defendant that it had elected not to pursue foreclosure and would be releasing the lien on the Hollow Tree Property, but would not be releasing Defendant from his liability on any amounts due and owing under the Tax Advantage Line of Credit. (Id. at ¶ 11.)

         On August 19, 2015, Plaintiff filed this suit against Defendant and Former Defendant Priscilla Okay in the Circuit Court for Arlington County, Virginia seeking the outstanding balance under the Tax Advantage Line of Credit, prior accrued interest, and reasonable attorney’s fees as provided for by the Tax Advantage Line of Credit. (Id., ¶ 15.) On or about October 9, 2015, Plaintiff settled its claim against Former Defendant Priscilla Okay for the sum of $25, 000.00. (Am. Compl., ¶ 15.) Defendant was not served with this lawsuit until April 18, 2016. (Notice of Removal, ¶ 4.) When the lawsuit was filed, and when Defendant received service of process, he lived in Staunton, Virginia. (Id.)

         On May 18, 2016, Defendant removed the action to this Court from the Circuit Court for Arlington County pursuant to 28 U.S.C. §§ 1332(a), 1441, and 1446. (Id.) Defendant then filed his Motion to Dismiss for Improper Venue or in the Alternative, Transfer the Action on May 25, 2016. Defendant noticed a hearing on his Motion for August 4, 2016. Plaintiff has not filed any opposition to Defendant’s Motion. Plaintiff did, however, file a Motion to Remand on June 23, 2016. (Pl.’s Mot. to Remand [Dkt. 6].) Defendant filed his Opposition to Plaintiff’s Motion to Remand on July 5, 2016. At the August 4, 2016 hearing the Court addressed both Defendant’s Motion to Dismiss for Improper Venue or, in the Alternative, Transfer the Action and Plaintiff’s Motion to Remand. Both Motions are now ripe for decision.

         II. Legal Standard

         A. Plaintiff’s Motion to Remand

         Plaintiff moves to remand this action back to the Circuit Court for Arlington County pursuant to Federal Rule of Civil Procedure 15(a) and 28 U.S.C. § 1447(c).

         Civil actions over which a federal court would have original jurisdiction can be removed by the defendant from state court to the appropriate federal district court pursuant to 28 U.S.C. § 1441. The party seeking removal bears the burden of establishing federal jurisdiction. See Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994)(citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921)). “If federal jurisdiction is doubtful, a remand is necessary.” Id. (citations omitted).

         Federal courts have original jurisdiction over civil actions between citizens of different States provided that “the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs . . . .” 28 U.S.C. § 1332(a). When determining the amount in controversy for purposes of diversity jurisdiction, courts must look to the complaint as it existed at the time of removal. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 292 (1938); Alabama Great S. Ry. Co. v. Thompson200 U.S. 206, 215 (1906). The court looks to the amount asserted in good faith in the plaintiff’s complaint at the time of removal, and will only question this number where “it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount.” McDonald v. Patton, 240 F.2d 424, 426 (4th Cir. 1957). The legal impossibility must be “so certain ...


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