United States District Court, E.D. Virginia, Newport News Division
NATIONSTAR MORTGAGE LLC, SAMUEL I. WHITE, P.C., TRUSTEE SECRETARY OF HOUSING AND URBAN DEVELOPMENT; and ENGRAM LLOYD, TRUSTEE, Plaintiffs,
KHAFRI DAUDA MUSTAFA ADUBIFA DARAJA, a/k/a MAURICE O. TURNER, JR., TRUSTEE OF T&F HOLDINGS LAND TRUST; DURWIN EUGENE TURNER, a/k/a EUGENE TURNER, a/k/a AHMAD EUGENE TURNER, TRUSTEE OF T&F HOLDINGS LAND TRUST; DURWIN EUGENE TURNER, a/k/a EUGENE TURNER, a/k/a EUGENE DURWIN TURNER, a/k/a AHMAD EUGENE TURNER, INDIVIDUALLY; T&F HOLDING LAND TRUST; CAPITAL ONE BANK USA, N.A.; and MIDLAND FUNDING LLC, Defendants.
S. DAVIS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Khafri Dauda Mustafa
Adubifa Daraja's ("Daraja") notice of removal
from the Circuit Court for the City of Hampton, Virginia, ECF
No. 7, and a motion to remand filed by Nationstar Mortgage
LLC, Samuel I. White, P.C., Trustee, Secretary of Housing and
Urban Development ("HUD"), and Engram Lloyd,
Trustee (collectively, "Nationstar" or
"Plaintiffs"), ECF No. 10. Daraja removed on the
basis of diversity jurisdiction, pursuant to 28 U.S.C.
§§ 1332(a) and 1441(a), and federal question
jurisdiction, pursuant to 28 U.S.C. §§ 1331 and
1441(a). Notice Removal 1-2, ECF No. 7. Defendants Durwin
Eugene Turner, Capital One Bank (USA), N.A. ("Capital
One"), T&F Holding Land Trust, and Midland Fund LLC
("Midland") have not joined in the removal.
Id. at 2-3 . Plaintiffs seek remand on the ground
that the notice of removal is defective because all
Defendants other than Daraja have not properly joined in or
consented to the removal. Pl.'s Mem. Supp. Remand 1, ECF
No. 11. Plaintiffs also assert that the notice of removal
does not include proper allegations regarding diversity
jurisdiction, and that a federal question does not exist
simply because HUD is a party to the suit. Id. 1-2.
FACTUAL AND PROCEDURAL HISTORY
September 2006, the T&F Holdings Land Trust
("T&F") acquired real property ("the
Property") located in Hampton, Virginia. Compl. 4, ECF
No. 1-2. Daraja and Durwin Eugene Turner were then trustees
of T&F, and have remained so until the present.
Id. at 2-3. Two months after acquiring the Property,
T&F conveyed the Property by deed of gift to the mother
of Defendants Daraja and Durwin Euguene Turner, Ida Mae
Turner, "for and during her natural life."
Id. at 5. Ida Mae Turner thereafter lived at the
Property as her principal residence. Id.
December 2007, Ida Mae Turner applied for a reverse mortgage
loan in which she inaccurately stated that she owned the
Property in fee simple. Id. Later that month, the
reverse mortgage loan was approved for $318, 000, and Ida Mae
Turner executed two deeds of trust conveying her interest in
the Property to trustees for HUD and Gateway Funding
Diversified Mortgage Services, LP. Id. at 5-7. Ida Mae
Turner directed that the loan proceeds be deposited into an
account owned by T&F. Id. at 9.
2011, Capital One docketed a judgment against Ida Mae Turner
in the principal amount of $3, 907.41. Id. In
February 2012, Midland docketed a judgment against Ida Mae
Turner in the principal amount of $3, 824.05. Id.
February 2017, Daraja prepared a quitclaim deed by which Ida
Mae Turner granted her interest in the Property to Ahmad
Eugene Turner. Id. at 10. On March 18, 2017, Ida Mae
Turner died. Id. Eleven days later, the quitclaim
deed was recorded. Id.
September 11 2017, Plaintiffs brought suit against Defendants
in the Circuit Court of Hampton, Virginia, seeking numerous
types of equitable and other relief related to the reverse
mortgage. Id. at 1, 11-18. In particular, Plaintiffs
assert the following: (1) that the deed of gift and the deeds
of trust should be reformed to reflect that the Property was
conveyed in fee simple to Ida Mae Turner, id. at
11-13; (2) that the court should quiet title to the Property
to reflect that Eugene Turner has no interest in it, and that
the reverse mortgage deeds of trust are valid and enforceable
liens against the Property, id. at 14; (3) in the
alternative, that Daraja and/or Eugene Turner be ordered to
disgorge any and all amounts of the loan proceeds by which
they were unjustly enriched, id.; (4) in the
alternative, that the court impose a constructive trust
against the Property in the amount of $318, 000, id.
at 15; and (5) that the court impose equitable relief to
"treat as done what in good conscience ought to have
been done", id. at 16.
October 16, 2017, Daraja removed the instant action to
federal court. Notice Removal 1, ECF No. 7. The notice of
removal states that ''[a]11 other Defendant(s) who
have been served with summons and petition have joined or
will join shortly in this removal, as will be evidenced by
the forthcoming Joinder/affidavit of Defendant(s) to be filed
hereafter and attached hereto." Id. at 2.
Defendants Durwin Eugene Turner, Capital One, T&F, and
Midland have not joined in the removal at any time since its
filing in October 2017. Id. at 2-3; see
also Def.'s Opp'n Remand Br. 2, ECF No. 13
(''[A]t the time of the Notice of Removal, this
Defendant was under the belief that the defendant Ahmad
Eugene Turner would be joining in the motion for removal,
but he has not done so, nor as a result of a
disagreement, has he communicated with this
Defendant.") (emphasis added). In all of his
filings, Daraja does not address why removal is proper
without the consent of T&F, Capital One, and Midland. As
mentioned above, Daraja asserts that there is diversity and
federal question jurisdiction, and has removed under 28
U.S.C. § 1441(a). Notice Removal 1-2, ECF No. 7.
October 16, 2017, Plaintiffs filed their motion to remand.
ECF No. 10. Their primary contention is that the notice of
removal is defective pursuant to 28 U.S.C. §
1446(b)(2)(A) in that all Defendants have not consented to
the removal. Pl.'s Mem. Supp. Remand 1, ECF No. 11. They
also assert that, even if the unanimity requirement did not
render removal defective, there is a lack of complete
diversity and a lack of federal question jurisdiction.
Id. at 1-2.
October 30, 2017, Daraja filed his response to the motion for
remand. Def.'s Opp'n Remand Br., ECF No. 13. On
November 6, 2017, Plaintiffs filed their reply brief.
Pl.'s Reply Br., ECF No. 14. With the motion to remand
fully briefed, this matter is ripe for consideration.
STANDARD OF REVIEW
district courts are courts of limited subject matter
jurisdiction. United States ex rel. Vuyyuru v.
Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) (citing
Exxon Mobile Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 552 (2005)). They may exercise "only the
jurisdiction authorized them by the United States
Constitution and by federal statute." Id.
(citing Bowles v. Russell, 551 U.S. 205 (2007)).
District courts have diversity jurisdiction in civil actions
between "citizens of different states" and
"where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs." 28
U.S.C. § 1332(a). If a case based on diversity
jurisdiction is not initially filed in federal court, a court
may exercise jurisdiction over the case upon proper removal
to federal court. 28 U.S.C. §§ 1441, 1446. District
courts have federal question jurisdiction in "all civil
actions arising under the Constitution, laws, or treaties of
the United States." 28 U.S.C. § 1331. Removal
implicates significant federalism concerns and, accordingly,
requires district courts to construe the removal statute
strictly against removal. Campbell v. Hampton Roads
Bankshares, Inc., 925 F.Supp.2d 800, 803 (E.D. Va. 2013)
(citing Venezuela v. Massimo Zanetti Beverage USA,
Inc., 525 F.Supp.2d 781, 784 (E.D. Va. 2007)).
1441 of Title 28, United States Code, provides that "any
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants 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). Further, 28 U.S.C. § 1446(b) (2)
(A) provides that " [w] hen a civil action is removed
solely under section 1441(a), all defendants who have been
properly joined and served must join in or consent to the
removal of the action." The Supreme Court has construed
these statutes "to require all defendants in a case to
join in or consent to removal, creating the so-called
'rule of unanimity.'" Hartford Fire Ins. Co.
v. Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th
Cir. 2013) (citing Mayo v. Bd. of Educ. of Prince
George's Cnty., 713 F.3d 735, 741 (4th Cir.2013)
(citing Lapides v. Bd. of Regents of Univ. Sys. of
Ga., 535 U.S. 613, 620 (2002))); see also
Charles Alan Wright & Arthur R. Miller, 14C Federal
Practice and Procedure § 3730 (4th ed.
2013 and Supp. 2017) (''In cases removed pursuant to
Sections 1441(a) and (b) of Title 28 and in other removals as
to which Congress has not otherwise provided, all of the
defendants in the state court action must consent to the
removal, and the notice of removal must be signed by all of
the defendants, although other forms of manifested consent
may be acceptable to the federal court, . . . courts at all
levels of the federal judiciary require written consent by
all of the defendants, either in the notice of removal or in
other papers filed with the district court."). The
Fourth Circuit has stated that "the rule of unanimity is