United States District Court, D. Maine
ORDER ON MOTION TO REMAND
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
limited liability company moves to remand its state law
claims against a national banking association. The Court
denies the Maine company's motion, finding that the value
of the matter in controversy exceeds $75, 000, making
diversity jurisdiction proper pursuant to 28 U.S.C. §
1332(a)(1), and that the national banking association timely
removed the case under 28 U.S.C. § 1446(b).
FACTUAL AND PROCEDURAL BACKGROUND
November 7, 2017, Infinity Real Estate, LLC (Infinity) filed
a lawsuit in state of Maine Superior Court against Deutsche
Bank National Trust Company, as Trustee for RBSGC 2007-B
(Deutsche Bank), alleging that Deutsche Bank breached a
contract when it failed to comply with the Purchase and Sale
Agreement for a property located at 1 Tudor Drive, Kittery,
Maine (the Property). State Court Record Attach. 1,
Docket Record, 1 (ECF No. 8-1); id. Attach.
2, Compl. (ECF No. 8-2).
January 29, 2018, Deutsche Bank filed a notice of removal to
this Court, claiming diversity jurisdiction. Notice of
Removal (ECF No. 1) (Notice of Removal). On
February 2, 2018, Infinity filed a motion for remand to state
court. Mot. for Remand (ECF No. 5) (Pl.'s
Mot.). On February 6, 2018, Deutsche Bank filed the
State Court Record and on February 8, 2018, Deutsche Bank
filed an answer to the Complaint in this Court. State
Court Record (ECF No. 8); Answer to Compl. (ECF
No. 9). On February 23, 2018, Deutsche Bank filed a response
to Infinity's motion to remand together with an affidavit
from Attorney Santo Longo. Def.'s Opp'n to
Pl.'s Mot. for Remand (ECF No. 10) (Def.'s
Opp'n); Aff. of Santo Longo in Connection with
Def.'s Opp'n to Pl.'s Mot. for Remand
(Longo Aff.). On March 6, 2018, Infinity filed a
reply. Reply on Mot. for Remand (ECF No. 12)
February 6, 2018 Complaint, Infinity alleged that Deutsche
Bank became the mortgagee for the Property on August 10,
2010, pursuant to a recorded assignment pursuant to which the
mortgage for the Property was assigned to Deutsche Bank.
Compl. ¶ 4. Infinity further alleged that on
April 19, 2012, Deutsche Bank obtained a judgment of
foreclosure, and on July 24, 2017, Deutsche Bank and Infinity
entered into a Purchase and Sale Agreement with respect to
the Property in which Deutsche Bank agreed to sell and
Infinity agreed to buy the Property. Compl.
¶¶ 3-6. According to Infinity, the Agreement
provides that the Seller transfer the Property to the Buyer
within sixty days, but Deutsche Bank refuses to perform.
Id. ¶¶ 8, 12. In its Complaint, Infinity
asks for a judgment requiring Deutsche Bank to specifically
perform the Agreement by conveying the Property to Infinity
in exchange for payment of the purchase price in the
Agreement. Id. ¶ 15.
Notice of Removal
January 29, 2018, Deutsche Bank filed a notice of removal of
civil action with this Court. Notice of Removal. In
its Notice of Removal, Deutsche Bank asserted that the action
is properly removable pursuant to 28 U.S.C. §
1332(a)(1), because the plaintiff is a state of Maine limited
liability company and it is “a citizen and resident of
California.” Id. at 2. Deutsche Bank asserted
that the amount in controversy was met because the
“State Court Action demands specific performance and/or
damages in connection with sale of real estate valued well in
excess of 500, 000.” Id. Finally, Deutsche
Bank claimed that its removal was timely because it had
“not yet been served with a copy of the summons and
complaint in this matter.” Id.
THE POSITIONS OF THE PARTIES
Infinity's Motion to Remand
Further Factual Allegations
first says that “[i]t appears that Deutsche Bank may
arguably be [in] violation having brought the Foreclosure
Lawsuit, and joined parties outside of the foreclosure,
without being authorized to do business in Maine and without
having an agent for service of process in
Maine.” Id. at 2-3 (citing 13-C M.R.S.
Infinity says that “[o]n December 22, 2017, counsel for
[Infinity] sent correspondence and the complaint to
“Deutsche Bank Nat'l Trust Co. as Trustee for RDSGC
2007-B”, certified mail, return receipt requested in
compliance with 5 M.R.S. § 113(2).” Id.
at 3. Infinity says it used as the mailing address, the
“same address that Deutsche Bank stated in the
Foreclosure Lawsuit and the Purchase and Sale
Agreement.” Id. Infinity alleges that
“[t]he Complaint was signed for on December 27, 2017
and service was effective as of that date.”
Id. (citing 5 M.R.S. § 113(2)(A) & (C)).
Infinity alleges that “[a]n answer to the complaint was
due by January 16, 2018, but no answer was filed and so
[Infinity] filed a Motion for Entry of a Default Judgment in
York County Superior Court on January 22, 2018.”
Id. Infinity say that the motion “is still
pending” as of February 2, 2018. Id.
Legal Arguments for Remand
moves to remand on two grounds. First, Infinity argues that
Deutsche Bank's removal was untimely, as its Notice of
Removal was filed on January 29, 2018, more than thirty days
after Infinity claims service was properly made. Pl.
Mot. at 3. Infinity says that service was properly made
on Deutsche Bank on December 27, 2017, when an unknown party
signed for the summons and complaint sent by certified mail
to the same address Deutsche Bank listed as its principal
place of business in both the foreclosure action as well as
in the Agreement. Id. at 2-3. Infinity contends that
this allegation in a prior pleading constitutes a judicial
admission. Id. at 3-4 (citing Bahre v. Liberty
Group Inc., 2000 ME 75, ¶ 15, 750 A.2d 558, 562,
Missouri Housing Development Commission v. Brice,
919 F.2d 1306, 1315 (8th Cir. 1990)).
Infinity argues that the Court lacks diversity jurisdiction
because Deutsche Bank fails to show that the amount in
controversy exceeds $75, 000. Id. at 4. It claims
that because the Complaint seeks a judgment of specific
performance, the amount of controversy requirement has not
been met. Id.
Deutsche Bank's Response
February 23, 2018 response, Deutsche Bank states that under
28 U.S.C. § 1446(b), the thirty-day period for removal
commences only upon service of process in accordance with
state law, and it avers that its removal is timely because it
had not yet been properly served with a copy of the summons
and complaint, though Infinity twice attempted service.
Notice of Removal ¶ 2. In support of its
contention, Deutsche Bank cites Quality Loan Service
Corporation v. 24702 Pallas Way, Mission Viejo, CA
92691, 635 F.3d 1128, 1132-33 (9th Cir. 2011),
Murphy Brothers, Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 347-48 (1999), and City of
Clarksdale v. BellSouth Telecommunications, Inc., 428
F.3d 206, 210 (5th Cir. 2005). Id. at 3.
Bank explains that on November 29, 2017, Infinity caused a
deputy sheriff to deliver a copy of the summons and complaint
to CT Corporation Systems. Notice of Removal ¶
2. Though Infinity believed CT Corporation Systems was an
agent of process for Deutsche Bank, Deutsche Bank had not
designated CT Corporation Systems as its agent of process.
State Court Record Attach. 1, Affidavit of Bruce
W. Hepler, 2 (ECF No. 8-7) (Hepler Aff.);
Notice of Removal ¶ 2. Infinity later received
a letter from CT Corporation Systems stating that service was
ineffectual. Hepler Aff. at 2. Deutsche Bank says
that it never received the summons and complaint as a result
of this attempted service. Notice of Removal ¶
December 22, 2017, Infinity sent a copy of the summons and
complaint by certified mail, return receipt requested, to
“Deutsche Bank Nat'l Trust Co as Trustee for RBSGC
2007-B”, an address belonging to Wells Fargo Bank, in
Fort Mills, South Carolina. Id.; Hepler Aff. at 4.
However, Deutsche Bank has not designated Wells Fargo as its
registered agent for service of process. Notice of
Removal ¶ 2. The mailing was accepted by an unknown
person at the address, but Deutsche Bank claims it did not
receive it. Id.
Bank asserts that Infinity's attempt at service by mail
was imperfect under both Maine Rule of Civil Procedure 4 and
the Maine Model Registered Agents Act, 5 M.R.S. § 113.
Id. at 3-6. Deutsche Bank takes the position that
Maine Rule of Civil Procedure 4(d)(9) does not permit service
on out-of-state corporations exclusively by mail.
Id. at 4. Deutsche Bank further alleges that the
mailing itself was insufficient because Infinity mailed the
“correspondence and complaint” without restricted
delivery as required by section 4(f)(1), and because there is
no proof that Infinity included a summons along with the
complaint in its mailing as required under section 4.
Id. at 4-5.
Bank also disputes that Infinity made proper service under
the Maine Model Registered Agents Act, 5 M.R.S. § 113,
for three reasons. Id. at 5-6. First, Deutsche Bank
contends that the Act does not apply because it only allows
service to be made on entities that previously made a clerk
or registered agent filing with the state, which it has not
done. Id. at 6. Second, Deutsche Bank argues that
the mailing was not addressed in accordance with the Act,
because the mailing was not addressed by name to the
governors of the entity, and was not sent to the principal
office, as identified in the most recent annual report filed
with the Secretary of State. Id. Third, Deutsche
Bank argues that service was not proper because service was
not actually perfected in accordance with section 113(2).
to the amount in controversy, Deutsche Bank asserts that the
amount in controversy requirement is met because the value of
the controversy is $164, 975.81, the difference between $590,
024.19, Infinity's lowest bid and the price at which
Infinity seeks performance of the Agreement, and $755, 000,
the highest bid by another bidder at auction. Resp. in
Opp'n to Mot. to Remand (Resp.) (ECF ...