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LLC v. Garden Village Associates

United States District Court, Ninth Circuit

June 6, 2013

CSA8-Garden Village, LLC, Plaintiff/Judgment Creditor,
Garden Village Associates at Grayhawk, LP; Kenneth L. Losch, David D. Dewar, et al., Defendants/Judgment Debtors. The Balloch Family Trust, Garnishee


BRIDGET S. BADE, Magistrate Judge.

Plaintiff CSA8-Garden Village, LLC (Plaintiff) has filed a motion to Remand and Request for Attorneys' Fees. (Doc. 15.) The Balloch Family Trust (the Trust) opposes the motion. (Doc. 18.) For the reasons set forth below, the Court grants the motion and remands this matter to the Superior Court of Arizona, Maricopa County (the State Court).[1]

I. Background

On September 10, 2010, in Case No. CV2009-020801, the State Court entered a Stipulated Judgment in the principal amount of $2, 796, 032.64 in favor of Plaintiff and against Defendants Garden Village Associates at Grayhawk, L.P., Kenneth K. Losch, David C. Dewar, Graystar Investments, LLC, Graystar Holdings, LLC, Kingston Capital Co., LLC, Kingston Holdings LLC, Kenneth K. Losch, as family trustee, and David C. Dewar, as independent trustee of the KL-998 Trust dated December 28, 1999, and David C. Dewar, as family trustee of the DCD-998 Trust dated December 27, 1999. (Doc. 1, Ex. D.) The Stipulated Judgment specifically provides that it "constitute[s] a final order under Ariz. R. Civ. P. 54(b)." ( Id. )

After obtaining the judgment, Plaintiff filed an Application for Writ of Garnishment in the State Court against the Trust. (Doc. 19, Ex. 2.) On March 18, 2013, David Dewar, a trustee, was served with garnishment pleadings. (Doc. 1, Ex. A; Doc. 15, Ex. A.) On March 28, 2013, the Trust removed the garnishment action to this Court based on diversity of citizenship pursuant to 28 U.S.C. § 1441(a).[2] (Doc. 1.) On April 18, 2013, Plaintiff filed a motion to remand arguing that removal was improper under 28 U.S.C. § 1441(b) because of the presence of a forum defendant, and because the necessary parties to the garnishment action destroy diversity. (Doc. 15.) The Trust opposes these arguments.[3] (Doc. 18.) As discussed below, removal is improper and the Court remands this matter to the State Court.

II. Removal to Federal Court

Federal courts are courts of limited jurisdiction and have subject matter jurisdiction only over those matters specifically authorized by Congress or the Constitution. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted). A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). District courts have diversity jurisdiction over any civil action between "citizens of different States" and between "citizens of a State and citizens or subjects of a foreign state" as long as the amount in controversy exceeds $75, 000.00, excluding interest and costs. 28 U.S.C. § 1332(a)(1) and (2). Section 1441 provides that diversity actions "may not be removed 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).

There is a "strong presumption' against removal jurisdiction [which] means that the defendant always has the burden of establishing that removal is proper." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted); see also Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 685 (9th Cir. 2006) (same). If removal was improper, the district court lacks subject matter jurisdiction and should remand the action to the state court. See 28 U.S.C. § 1447(c).

A. Removal of State Garnishment Action

Although the parties have not raised the issue, because federal courts have a duty to examine their subject matter jurisdiction, the Court first considers whether a state court garnishment proceeding is a "civil action" for purposes of 28 U.S.C. § 1441(a) that can be removed. See United Invs. Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 966 (9th Cir. 2004) ("[A] district court's duty to establish subject matter jurisdiction is not contingent upon the parties' arguments") (citing Mitchell v. Maurer, 293 U.S. 237, 244 (1934)).

The Ninth Circuit has recognized that garnishment proceedings are independent civil actions that are removable to federal district court. See Swanson v. Liberty Nat'l Ins. Co., 353 F.2d 12, 13 (9th Cir. 1965) (state garnishment proceeding was removable under 28 U.S.C. § 1441); see also Nationwide Invs. v. Miller, 793 F.2d 1044, 1045 (9th Cir. 1986) (holding that "a state court garnishment proceeding, to which a federal officer acting under color of office has been summoned, is a civil action, ' within § 1442(a)(1) and therefore is removable to federal district court."). Thus, this garnishment action is removable if it satisfies the requirements of 28 U.S.C. § 1441. See Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. ESI Ergonomic Solutions, LLC, 342 F.Supp.2d 853, 858-61 (D. Ariz. 2004) (concluding that court lacked diversity jurisdiction over garnishment action because amount in controversy did not exceed $75, 000.00 and remanding garnishment action to state court).

B. Removal Based on Diversity Jurisdiction

To invoke this Court's diversity jurisdiction, the Trust must establish diversity of citizenship and that the amount in controversy exceeds $75, 000.00. See 28 U.S.C. § 1332. Diversity "is determined (and must exist) as of the time the complaint is filed and removal is effected." Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1980) (diversity is determined by the citizenship of the parties as of the filing of the original complaint); Newcombe v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998) (diversity must exist when the action is removed). Additionally, even if there is diversity between the parties, a federal court may not exercise jurisdiction when the removing defendant is a citizen of the forum state. See 28 U.S.C. § 1441(b)(2); Ibarra v. Protective Life Ins. Co., 2009 WL 1651292, *1 (D. Ariz. Jun. 12, 2009) ("This axiom is commonly referred to as the forum defendant rule'").

Because the dollar amount of Plaintiff's garnishment action is not in dispute, the only issue for the Court's consideration is diversity of citizenship, including whether there was a forum defendant at the time of removal.[4] As discussed below, although the Notice of Removal invokes this Court's diversity jurisdiction, the ...

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