United States District Court, E.D. Virginia, Norfolk Division
JAMES K. JOLLEY, Plaintiff,
U.S. BANK, N.A. AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT, et al., Defendants.
ORDER OF REMAND
REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE
matter comes before the court on Plaintiff James K.
Jolley's ("Jolley") Motion to Remand to State
Court ("Motion to Remand") and corresponding
Memorandum in Support, both filed on January 3, 2019. ECF
Nos. 17-18. For the reasons set forth below, the Motion to
Remand is GRANTED.
19, 2018, Jolley filed a Complaint with the Circuit Court for
the City of Chesapeake ("circuit court"), naming
U.S. Bank National Association as Trustee for the RMAC Trust,
Series 2016-CTT ("U.S. Bank") and Samuel I. White,
P.C., Trustee A/K/A Samuel White, Trustee ("SIWPC")
as Defendants. Mem. Supp. at 2, ECF No. 18.
seeks judgment against the Defendants on four counts:
"Declaratory Judgment," "Equitable
Estoppel," "Quiet Title," and
"Injunction." Compl. ¶¶ 9-35, ECF No. 1-1
at 3-57. These claims arise out of Jolley's
purchase of certain real property ("the Property")
pursuant to foreclosure proceedings under the BB&T Deed
of Trust ("BB&T DOT"). Id.
¶¶ 6-8. Jolley alleges that U.S. Bank's Deed of
Trust ("ML DOT") is subordinate to the BB&T
DOT. Id. ¶¶ 10-11. Jolley further alleges
that the ML DOT was extinguished by the foreclosure sale to
Jolley under the BB&T DOT and that the ML DOT is no
longer a lien on Jolley's property. Id. ¶
25, 2018, U.S. Bank's Registered Agent was served with
the Complaint. Mot. Leave File Answer ¶ 2, ECF No. 1-1
at 84-97. On August 28, 2018, Jolley filed a Motion for
Summary Judgment on the basis that U.S. Bank was in default
for failing to file a responsive pleading or otherwise appear
within twenty-one (21) days after service of the summons and
complaint pursuant to Virginia Supreme Court Rules 3:8, 3:9,
and 3:19. Mot. Summ. J. ¶¶ 4-5, ECF No. 1-1 at
65-71. Jolley's Motion for Summary Judgment was noticed
for October 3, 2018. Notice Hr'g Pl.'s Mot. Summ. J.
at 1, ECF No. 1-1 at 82-83.
October 2, 2018, U.S. Bank engaged counsel to represent it in
this matter. Mot. Leave File Answer ¶ 4. The following
day, on October 3, 2018, the Motion for Summary Judgment was
continued, and counsel for SIWPC sent an e-mail to counsel
for U.S. Bank with a proposed Agreed Order naming Samuel I.
White, P.C., Trustee A/K/A Samuel White, Trustee as a Nominal
Party ("Agreed Nominal Party Order"). Mem. Supp.,
Ex. A at 1-4, ECF No. 18-1. U.S. Bank's counsel responded
that same day and consented to the entry the Agreed Nominal
Party Order. Id. at 1. The Agreed Nominal Party
Order was entered by the circuit court on November 19, 2018.
Agreed Order at 2, ECF No. 4 at 8-10.
interim, U.S. Bank filed a Motion for Leave to File Answer on
October 17, 2018, which explained that U.S. Bank failed to
timely file a responsive pleading to the Complaint because it
"was improperly routed to the incorrect individual and
department of U.S. Bank." Mot. Leave File Answer ¶
3. The Motion for Leave to File Answer was noticed for
November 28, 2018. Praecipe at 1, ECF No. 1-1 at 98-99. The
circuit court heard Jolley's Motion for Summary Judgment
and U.S. Bank's Motion for Leave to File Answer on
November 28, 2018. Tr. Hr'g at 3, ECF No. 21. At the end
of the hearing on November 28, 2018, the circuit court
indicated that it anticipated ruling "within the next
week." Id. at 25. The next week, on December 4,
2018, U.S. Bank filed a Notice of Removal pursuant to 28
U.S.C. §§ 1332, 1441, and 1446. ECF No. 1.
January 3, 2019, Jolley filed the instant Motion to Remand
and corresponding Memorandum in Support. ECF Nos. 17-18.
Jolley asserts three grounds for remand: First, Jolley argues
that the Notice of Removal was untimely under 28 U.S.C.
§ 1446, because more than thirty days had passed from
October 3, 2018, which is the date U.S. Bank could first
ascertain that the case had become removable. Mem. Supp. at
1. Second, Jolley argues that "US Bank has not satisfied
its burden to demonstrate that there is complete diversity of
the parties or federal subject matter jurisdiction."
Id. Finally, Jolley urges the court to "decline
jurisdiction, pursuant to its discretionary authority under
Title 28 U.S.C. § 2201, over this state court
declaratory judgment action.'' Id. at 1-2.
January 22, 2019, U.S. Bank filed a Response in Opposition to
Plaintiff's Motion to Remand ("Response"),
asking the court to deny Jolley's Motion to Remand. ECF
No. 26. On January 28, 2019, Jolley filed a Reply in Support
of Its Motion to Remand to State Court ("Reply") .
ECF No. 27. On February 4, 2019, Jolley, with agreement of
U.S. Bank, requested a hearing on its Motion to Remand. ECF
No. 28. The Motion to Remand is ripe for review and the court
finds a hearing unnecessary to resolve the Motion to Remand.
defendant may remove a civil case to federal court if
"the district courts of the United States have original
jurisdiction." 28 U.S.C. § 1441(a). "The
notice of removal of a civil action or proceeding shall be
filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based." Id. §
1446(b) (1) .
[I]f the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days
after receipt by the defendant . . . of a copy
of an amended pleading, motion, order or other paper
from which it may first be ...