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FRONTIER INS. CO. v. MTN OWNER TRUST

August 30, 2000

FRONTIER INSURANCE COMPANY AND NAC REINSURANCE CORPORATION, PLAINTIFFS,
V.
MTN OWNER TRUST AND NORWEST BANK MINNESOTA NATIONAL ASSOCIATION, AS TRUSTEE, DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

OPINION AND ORDER

Plaintiffs, Frontier Insurance Company and NAC Reinsurance Corporation, commenced this fraud action against defendants, MTN Owner Trust and Norwest Bank Minnesota National Association ("Norwest"), by filing of a Summons with Notice in New York State Supreme Court, Sullivan County, on April 28, 2000. By Notice of Removal dated June 7, 2000, defendants removed this action under 28 U.S.C. § 1441(a), contending that this Court has original jurisdiction based upon diversity of citizenship. Presently before this Court is plaintiffs' motion to remand the case to the Supreme Court, Sullivan County. For the reasons stated below, plaintiffs' motion to remand is granted.

BACKGROUND

Plaintiffs allege, and defendants do not dispute, that plaintiffs are citizens of New York and that plaintiff NAC Reinsurance Corporation is a citizen of Connecticut, where it has a principal place of business. Plaintiffs assert that defendant Norwest is a citizen of New York and Connecticut, so that complete diversity does not exist and the case must be remanded for lack of federal jurisdiction.

Norwest is a national banking association ("NBA") with its principal place of business in Minneapolis, Minnesota. (Luger Decl. ¶ 2.) Norwest provides retail and commercial banking services. (Id.) Norwest is a subsidiary of Wells Fargo & Company, a Delaware corporation which has its principal place of business in California. (Id. at ¶ 4.) Effective July 8, 2000, Norwest changed its name to Wells Fargo Bank Minnesota National Association. (Id. at ¶ 1 n. 1.) However, for the purposes of this motion, we will continue to refer to this defendant as Norwest.

As of July 8, 2000, Norwest had 153 branch banks located in Minnesota, and no branches in New York or Connecticut. (Id. at ¶ 3.) As of that same date, Norwest employed 6,547 people, with 6,064 of the employees located in Minnesota. (Id. at ¶ 4.) Norwest has six employees located in New York City, five of whom work in its commercial mortgage-backed securities business. (Id. at ¶ 6.) Norwest has two employees in Connecticut in connection with its high-yield debt securities business. (Id.) Defendant asserts that it does not maintain an office in either New York or Connecticut that is open to the general public. (Id.)

Plaintiffs argue that, as a result of Norwest's merger with Wells Fargo & Company, defendants have a substantial presence in New York and Connecticut. Plaintiffs point to the promotional materials announcing the merger, in which the resulting entity is described as "one national franchise." (Maas Decl., Ex. B.) Plaintiffs also put forth a press release in which Norwest announces the name change of Norwest Mortgage, Inc. to Wells Fargo Home Mortgage, and states that the merged entity has "a presence in more than 1,100 mortgage stores and Norwest/Wells Fargo bank locations serving all 50 states." (Id., Ex. C.) A search for Norwest locations via the Norwest website lists multiple branches in New York and Connecticut. (Id., Ex. D.)

Defendants assert that Norwest and Wells Fargo Home Mortgage, Inc., are separate and distinct legal entities. (Luger Decl. ¶ 5.) Wells Fargo Home Mortgage, Inc., a California corporation with its principal place of business in Des Moines, Iowa, is a wholly-owned subsidiary of Wells Fargo & Company. (Id.)

DISCUSSION

I. Standard of Review for Motion to Remand

A cause of action that was originally filed in the state court may be removed by the defendant where "the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). It is axiomatic that, for removal to be considered proper, the removing party must demonstrate that this Court is endowed with the requisite subject matter jurisdiction. See Caterpillar v. Williams, 482 U.S. 386, 391-92, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Removal jurisdiction, moreover, is strictly construed inasmuch as it implicates significant federalism concerns and abridges the deference courts generally give to a plaintiff's choice of forum. See id.; see also In re NASDAQ Market Makers Antitrust Litigation, 929 F. Supp. 174, 178 (S.D.N.Y. 1996) ("Removal jurisdiction must be strictly construed, both because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns"); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined"); State of New York v. Lutheran Ctr. for the Aging, Inc., 957 F. Supp. 393, 397 (E.D.N.Y. 1997) ("Removal statutes are to be strictly construed"). The removing party bears the burden of establishing the propriety of the removal. See Fisher v. Building Servs., 96 Civ. 4317, 1997 WL 590843, *2 (S.D.N.Y. Sept.22, 1997); Still v. DeBuono, 927 F. Supp. 125, 129 (S.D.N.Y. 1996); Avon Prods., Inc. v. The A/J Partnership, 89 Civ. 3743PNL, 89 Civ. 8032PNL, 1990 WL 422416, at *1 (S.D.N.Y. March 1, 1990).

While Sections 1441 and 1446 permit removal to the federal courts in certain circumstances, 28 U.S.C. § 1447(c) authorizes a remand on the basis of any defect in removal procedure or because the district court lacks subject matter jurisdiction. See LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 72 (2d Cir. 1994). "All doubts should be resolved in favor of remand." Leslie v. BancTec Serv. Corp., 928 F. Supp. 341, 347 (S.D.N.Y. 1996) (internal quotations and citations omitted); see also Boyer v. Snap-On Tools Corp., 913 F.2d 108 (3d Cir. 1990); Town of Moreau v. State Dep't of Envtl. Conservation, No. 96 Civ. 983, 1997 WL 243258, at *1 (N.D.N.Y. May 5, 1997) (citing Leslie, 928 F. Supp. at 347).

II. Diversity Jurisdiction

Defendants removed this case on the basis that diversity jurisdiction exists. Title 28, section 1441(b) provides that in actions where diversity of citizenship serves as the jurisdictional basis for removal, "such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). Further, unless complete diversity exists between the parties, this Court lacks original subject matter jurisdiction, and the case was not properly removed. See 28 U.S.C. § 1332. Here, it is undisputed that plaintiffs are citizens of New York, and plaintiff NAC Reinsurance Corporation is a ...


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