United States District Court, S.D. New York
MOHAMMAD G. M. KHAN, Plaintiff,
CXA-16 CORPORATION, A TEXAS CORPORATION, JOE T. HASSELT, and All Persons or Entities Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs Title, or Any Cloud on Plaintiffs Title Thereto and DOES 1 through 10, Inclusive, Defendants.
OPINION & ORDER
Abrams United States District Judge.
the Court is the motion of pro se Plaintiff Mohammad
G. M. Khan to remand this quiet title action to the Supreme
Court of the State of New York, Bronx County, where it was
originally filed. Defendant CXA-16 Corporation
("CXA-16") removed the case on August 25, 2016 on
the basis of diversity. Defendant Joe T. Hasselt, who has not
appeared in this action, did not consent to removal. Khan
contends that CXA-16 has failed to establish subject matter
jurisdiction and the propriety of removal. In addition to
remanding the case, he asks the Court to sanction CXA-16 and
award fees and costs. For the reasons that follow, Khan's
motion is denied.
citizen of New York, has resided at 2703 Decatur Avenue,
Bronx, New York 10458 (the "Property") since
February 14, 1992. Compl. ¶¶ 2, 7; Notice of
Removal ¶ 9. He serves as the "Spiritual Head and
Imam/Priest" of a religious not-for-profit and
tax-exempt corporation (the "Church") located at
the Property. Compl. ¶ 7. On April 27, 2015, LNV
Corporation ("LNV") purchased the Property at a
foreclosure sale for $145, 600. Notice of Removal ¶ 14;
Twitchell Decl. Ex. 3. LNV then sold the Property to CXA-16
on September 16, 2015 for a nominal fee. See
PL's Mot. for Remand & Sanctions Ex. D. CXA-16 is a
Texas citizen. See Notice of Removal ¶ 10;
Compl. ¶ 2(a) (alleging that CXA-16 is a Texas
corporation); Twitchell Decl. ¶ 3 ("[a]ll of
[CXA-16's] officers are located in [CXA-16's] Texas
appears to be a real estate broker who has represented CXA-16
in connection with the Property. See, e.g., PL's
Ltr. to Ct. Exs. 2, 7, Sept. 13, 2016. Hasselt is a New York
resident, Compl. ¶ 2(b), but CXA-16 contends that his
citizenship "should not be considered for purposes of
diversity" because he is not a proper party to the case,
Notice of Removal ¶ 11.
filed this quiet title action in state court on July 21,
2016. He alleges that he is the owner of the Property through
adverse possession. Compl. ¶ 3.
federal removal statute allows a defendant to remove an
action to federal court in 'any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.'" Brown v. Eli Lilly
& Co., 654 F.3d 347, 356 (2d Cir. 2011) (quoting 28
U.S.C. § 1441(a)). CXA-16 removed this action on the
basis of diversity jurisdiction, which exists "where the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between . . .
citizens of different States." 28 U.S.C. § 1332(a).
The removing party bears the burden of demonstrating subject
matter jurisdiction and the propriety of removal.
Montefiore Med. Ctr. v. Teamsters Local 272, 642
F.3d 321, 327 (2d Cir. 2011); United Food &
Commercial Workers Union, Local 919 v. CenterMark Props.
Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).
"The right to remove a state court action to federal
court on diversity grounds is statutory, and must therefore
be invoked in strict conformity with statutory
requirements." Lupo v. Human Affairs Int 1,
Inc. , 28 F.3d 269, 274 (2d Cir. 1994) (quotation marks
and citation omitted).
Hasselt is a proper party, then removal was improper and the
Court appears to lack subject matter jurisdiction over the
case. Diversity requires each plaintiffs citizenship to be
different from the citizenship of each defendant,
Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir.
2009), and an action cannot be removed on the basis of
diversity "if any 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)(2). Hasselt appears to be a New York citizen, which
would mean that he is not diverse from Khan, and he is
"a citizen of the State in which [the] action [was]
brought." Id. Furthermore, removal requires the
consent of "all defendants who have been properly joined
and served, " id. § 1446(b)(2)(A), and
Hasselt did not consent. Thus, if he is a proper party, then
CXA-16's removal of the action violated the so-called
"rule of unanimity."
under the doctrine of fraudulent joinder, courts will
overlook the presence of a defendant who defeats removal
"if from the pleadings there is no possibility that the
claims against that defendant could be asserted in state
court." Brown, 654 F.3d at 356 (quotation marks
omitted); see also Thompson v. Accent Capital, 491
F.App'x 264, 265 (2d Cir. 2012) (summary order);
Almeciga v. Ctr. for Investigative Reporting, Inc.,
121 F.Supp.3d 379, 382 (S.D.N.Y.2015). The party seeking
removal "bears the heavy burden of proving the
circumstances by clear and convincing evidence, with all
factual and legal ambiguities resolved in favor of
plaintiff." Brown, 654 F.3d at 356 (quotation
marks omitted). "[C]ourts can look beyond the pleadings
to determine if the pleadings can state a cause of action,
" and "apply the state pleading rules ... in
deciding whether a plaintiff could have asserted a viable
claim in state court." MBIA Ins. Corp. v. Royal Bank
of Can., 706 F.Supp.2d 380, 394-95 (S.D.N.Y. 2009)
(quotation marks omitted). "Courts examining a complaint
to determine whether a party has been fraudulently joined
will subject the complaint to less searching scrutiny than on
a motion to dismiss for failure to state a claim."
Almeciga, 121 F.Supp.3d at 382 (quotation marks
York, "[t]he action to quiet, or to remove a cloud on,
title was originally created by courts of equity in order to
enhance the marketability and transferability of real
property titles." 2-24 Warren's Weed New York Real
Property § 24.01. However, "New York has codified
the common law action to quiet title" in Article 15 of
the Real Property Actions and Proceedings Law. W. 14th
St. Commercial Corp. v. 5 W. 14th Owners Corp., 815 F.2d
188, 196 (2d Cir. 1987). While Article 15 did not abrogate
the common law action, see Barberan v. Nationpoint,
706 F.Supp.2d 408, 417 (S.D.N.Y. 2010), "any distinction
between a common law action to quiet title and a statutory
action to compel the determination of a claim to real
property is hazy at best, " 2-24 Warren's Weed New
York Real Property § 24.04. Under both the common law
and statutory causes of action, a plaintiff must allege,
inter alia, that the defendant "holds title or
has [some] other interest in the property." Zap v.
Mortg. Elec. Registration Sys., Inc., No.
15-CV-0624(MAD) (TWD), 2016 WL 6471229, at *5 (N.D.N.Y. Nov.
1, 2016); see also NY. Real Prop. Acts. Law §
1515(1); Barberan, 706 F.Supp.2d at 420 (holding
that plaintiffs had not pled a common law or Article 15 claim
where they "failed to allege any facts regarding [the
defendant's] interest in the Property"); Siller
v. Third Brevoort Corp., 44 N.Y.S.3d 40, 41 (1st
Dep't 2016) (dismissing Article 15 claim that was
"unsupported by an alleged adverse property claim by the
Complaint does not allege any facts regarding Hasselt's
interest in the Property; it simply alleges that he has one.
See Compl. ¶ 9 (alleging that both CXA-16 and
Hasselt "claim an estate or interest in the [Property]
that is adverse to plaintiff). This conclusory allegation
would be insufficient to state a claim against Hasselt under
federal or state pleading rules. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) ("A pleading that
offers 'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not
do.'" (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007))); Godfrey v. Spano, 920
N.E.2d 328, 334 (N.Y. 2009) ("[C]onclusory
allegations-claims consisting of bare legal conclusions with
no factual specificity-are insufficient to survive a motion
to dismiss."). Furthermore, based on a review of
Khan's other submissions, the Court concludes that
"there is no possibility that the claim[ ] against
[Hasselt] could be asserted in state court."
Brown, 654 F.3d at 356 (quotation marks
argues that Hasselt is a proper party because he served as
CXA-16's real estate broker and testified on CXA-16's
behalf in matters involving the Property. See
generally PL's Mot. for Remand & Sanctions;
PL's Ltr. to Ct, Sept. 13, 2016. However, merely serving
as the agent of a property owner does not make one a proper
defendant to a quiet title action. See, e.g., Pirrelli v.
OCWEN Loan Servicing, LLC, 12 N.Y.S.3d 110, 116 (2d
Dep't 2015) (holding that mortgagors failed to state a
quiet title claim against attorneys who represented the
mortgagee in foreclosure proceedings because "the
complaint did not allege that [the attorney] defendants ha[d]
or claim[ed] to have an interest in the subject property that
[was] adverse to plaintiffs' claimed interest").
even accepting as true the factual assertions that Khan makes
in his motion papers, Hasselt is not a proper party to this
action, and his presence should be disregarded in determining
the propriety of removal and the existence of jurisdiction.
If Hasselt's presence is disregarded, then Khan has no
valid objection to removal. As Khan is a citizen of New York
and CXA-16 is a citizen of Texas, the parties are completely
diverse and no defendant is a citizen of the forum state.
Furthermore, because Hasselt is not a proper party to this
action, removal did not violate the ...