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Infinity Real Estate, LLC v. Deutsche Bank National Trust Co.

United States District Court, D. Maine

September 4, 2018




         A Maine 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).


         A. Procedural History

         On 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).

         On 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) (Pl.'s Reply).

         B. The Complaint

         In its 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.

         C. Notice of Removal

         On 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.


         A. Infinity's Motion to Remand

         1. Further Factual Allegations

         Infinity 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.”[1] Id. at 2-3 (citing 13-C M.R.S. § 1502).

         Second, 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.

         2. Legal Arguments for Remand

         Infinity 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)).

         Second, 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.

         B. Deutsche Bank's Response

         In its 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.

         Deutsche 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 ¶ 2.

         On 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.

         Deutsche 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.

         Deutsche 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). Id.

         Turning 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 ...

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