United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS ALEXANDRIA UNITED STATES DISTRICT COURT JUDGE
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[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.
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
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.
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
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.)
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,
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.
Plaintiff’s Motion to Remand
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).
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).
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 ...