United States District Court, W.D. Virginia, Charlottesville Division
Lieselott E. Wiendieck, Plaintiff,
Wells Fargo Bank, N.A., Defendant.
K. MOON UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant Wells Fargo Bank,
N.A.’s (“Wells Fargo”) motion to dismiss
(dkt. 4) and Plaintiff Lieselott Wiendieck’s motion to
remand (dkt. 6).
Court has diversity jurisdiction over the subject matter.
Wiendieck is a citizen of Virginia and Wells Fargo is a
citizen of South Dakota, and the amount in controversy
exceeds $75, 000.
alleges she has a lifetime lease on her residence and that
she may, despite Wells Fargo’s foreclosure on the
property, remain there pursuant to Va. Code §
55-225.10(C), which incorporates portions of The Protecting
Tenants at Foreclosure Act. Section 55-225.10(C) requires the
payment of rent, and because Wiendieck’s lease is
“rent-free, ” see Compl. ¶ 9, the I
find that she is not entitled to enforce her rent-free lease
against Wells Fargo.
Wiendieck’s motion to remand will be denied and Wells
Fargo’s motion to dismiss will be granted.
Facts as Alleged and Procedural History
2004, Wiendieck sold her home in Greene County, Virginia, to
Lawrence and Marlene Eagleburger, who financed the purchase
price with a loan from Wells Fargo. The loan was secured by a
deed of trust. In 2007, “[a]s part of the consideration
for the purchase[, ]” the Eagleburger’s entered
into a written, but unrecorded, “lifetime, rent-free
lease” of the home. Compl. ¶ 9; see also
Docket No. 1, Ex. D, at 10 (“No annual base rent shall
be paid under this Lease.”). The Eagleburgers died and
their heirs defaulted on the Wells Fargo loan. Wells Fargo
foreclosed on the property and bought it at an auction on
December 16, 2015.
13, 2016, Wells Fargo brought an unlawful detainer action
against Wiendieck in the Greene County General District
Court. On May 29, 2016, Wiendieck filed an action in the
Greene County Circuit Court against Wells Fargo seeking
specific performance and a permanent injunction preventing
Wells Fargo from interfering with her rights under the lease.
On June 3, 2016, Wells Fargo removed Wiendieck’s action
to this court and filed a motion seeking to dismiss
Motion to Remand
argues that this action should be remanded because: (1) the
parties should be realigned such that Wells Fargo is the
plaintiff; (2) the Anti-Injunction Act prevents removal; (3)
the prior exclusive jurisdiction doctrine bars removal; and
(4) Wells Fargo has waived its right to remove. All of these
argues that the parties in this case should be realigned such
that Wells Fargo is considered the plaintiff and Wiendieck
the defendant. Accordingly, as a plaintiff, Wells Fargo would
be unable to remove under Section 1441. See 28
U.S.C. § 1441(a) (“[A]ny civil action . . . may be
removed by the defendant or the defendants . . .
.”) (emphasis added).
law determines who is a defendant under Section 1441, see
Chicago, R.I. & P.R. Co. v. Stude, 74 S.Ct. 290, 294
(1954), and so “the state court caption is not always
determinative of which party is the plaintiff and which is
the defendant for removal purposes.” Williamsburg
Plantation, Inc. v. Bluegreen Corp., 478 F.Supp.2d 861,
864 (E.D. Va. 2006).
is properly considered a plaintiff where “the
institution and continuance of the proceedings depend upon
[that party’s] will.” Mason City & Ft.
D.R. Co. v. Boynton, 27 S.Ct. 321, 323 (1907). In
determining whether to realign parties, the Fourth Circuit
applies the “principal purpose” test, which
requires courts to “determine the primary issue in
controversy” and then “align the parties
according to their positions with respect to the primary
issue.” Palisades Collections LLC v. Shorts,
552 F.3d 327, 337 (4th Cir. 2008).
Supreme Court has generally confined realignment to contexts
where a state statute designates a party as plaintiff or
defendant irrespective of whether the party instituted the
proceeding. For instance, in Stude, a railroad
seeking to condemn property instituted proceedings in state
court. The railroad was, pursuant to state statute, styled as
the defendant, while the property owner was styled as the
plaintiff, even though the railroad initiated the suit. 74
S.Ct. at 293. After commencing the suit, the railroad sought
removal to the federal district court.
Court found removal improper. Though styled as the defendant,
the railroad had instituted the proceedings and sought legal
relief (condemnation). The Court therefore found that the
railroad was more properly considered the plaintiff because
“the institution and continuance of the proceedings
depend[ed] upon its will.” Id. at 294; see
also Mason City, 27 S.Ct. at 324 (“The intent of
the railroad to get the land is the mainspring of the
proceedings from beginning to end, and the persistence of
that intent is the condition of their effect.”).
the principal purpose test, it is evident from
Wiendieck’s complaint that the primary issue in
controversy is whether Wiendieck may compel Wells Fargo to
honor her lease. It is Wiendieck who seeks relief, and so the
“mainspring” of this case is Wiendieck’s
desire to obtain specific performance and an injunction.
Accordingly, “the institution and continuance of the
proceedings depend upon [her] will.” Stude, 74
S.Ct. at 294.
Wiendieck is most analogous to the railroads in
Stude and Mason City. Like the railroads,
she instituted this proceeding, and she is the party who
seeks a legal award. Wells Fargo, like the landowners, seeks
only to defend. The parties are, therefore, properly
“align[ed] . . . according to ...