WILLIAM CASSADY, Magistrate Judge.
This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the notice of removal (Doc. 1), the pro se plaintiffs' motion to remand (Doc. 11), and the defendants' response in opposition (Doc. 19). Upon consideration of the foregoing pleadings, the Magistrate Judge recommends that the Court
On September 27, 2011, plaintiffs Robert F. and Beverly Berry filed a pro se complaint in the Circuit Court of Baldwin County, Alabama, against Mortgage Electronic Registration Systems, Inc. ("MERS"), BAC Home Loans Servicing, LP ("BAC"), Countrywide Home Loans Servicing, LP ("Countrywide"), and Deutsche Bank National Trust Company ("Deutsche Bank"). (Doc. 1, Exhibit A.) The complaint alleged that defendant Deutsche Bank was foreclosing on certain real property owned by plaintiffs at 448 Clubhouse Drive, in Fairhope, Alabama, but had failed, along with defendants MERS and Bank of America, to comply with state non-judicial foreclosure sale procedures; that the legal requirements set forth in § 35-10-3 of the Alabama Code had not been adhered to and, consequently, a foreclosure sale may not be held; and, finally, that plaintiffs did not breach the terms of the promissory note and deed of trust. (Doc. 1, Exhibit A, COMPLAINT, at 2-4.) In light of these allegations, plaintiffs asserted state-law causes of action against the defendants for declaratory relief, injunctive relief, a demand for an accounting, and breach of contract. (Id. at 2-5.) The ad damnum clause of the complaint does not delineate specific monetary damages; instead, plaintiffs demand the following relief:
(Id. at 5-6.)
Defendants MERS, Bank of America, N.A. ("Bank of America"), successor by merger to BAC, Countrywide, and Deutsche Bank file a notice of removal in this Court on November 1, 2011, removing this action pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. 1, at 1-2.) Defendants predicate federal jurisdiction on diversity pursuant to 28 U.S.C. § 1332. (Id. at 2.) As to the citizenship element, defendants allege that complete diversity exists because the Berrys are Alabama citizens, while defendant MERS is a Delaware corporation with its principal place of business in Virginia, defendant Bank of America is a national banking association whose articles of association designate North Carolina as the location of its main office,
In their motion to remand, filed December 12, 2011, plaintiffs request that this action be remanded to the Circuit Court of Baldwin County, Alabama, on the following theories: (1) the "affirmative action" of the Berrys, that is, their complaint, is actually "in the nature of a counterclaim" under Alabama law, such that the removing parties should be viewed not as defendants but as plaintiffs who could not properly remove this action to federal court; (2) because the Circuit Court of Baldwin County has already taken jurisdiction of this in rem action, and the defendants have submitted to the jurisdiction of that state court through the terms of the mortgage and their actions, federal jurisdiction is negated; and (3) defendants have failed to prove by a preponderance of the evidence that the amount in controversy has been met. (See Doc. 11, at 3-7.)
Defendants filed their response in opposition on January 5, 2012 (Doc. 19) and although plaintiffs were extended the opportunity to file a reply by January 12, 2012 (Doc. 13), no reply was filed (see Docket Sheet). Therefore, this case is ripe for a decision by the Court.
There can be no doubt but that "[f]ederal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Russell Corp. v. American Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citation omitted); see also Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir.) ("[R]emoval statutes should be construed narrowly, with doubts resolved against removal."), cert. denied, 540 U.S. 877, 124 S.Ct. 277, 157 L.Ed.2d 140 (2003); University of South Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) ("Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly. . . . Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court."); see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) ("Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree[.]" (internal citations omitted)). Moreover, the removing defendants must bear "the burden of demonstrating federal jurisdiction." Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998) (citation omitted); see also McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) ("[T]he party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction."). Stated differently, because federal courts are courts of limited jurisdiction "[i]t is . . . presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]" Kokkonen, supra, 511 U.S. at 377, 114 S.Ct. at 1675 (internal citations omitted).
As alluded to earlier, where, as here, jurisdiction is predicated on diversity of citizenship pursuant to 28 U.S.C. § 1332 (see Doc. 1, at ¶ 5 ("This Court has original jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1332. . . . The requirements for diversity jurisdiction are met in this case, as the properly named parties are completely diverse in citizenship and the amount in controversy, exclusive of interest and costs, exceeds $75,000.")),
In this case, plaintiffs do not dispute that the parties are of diverse citizenship. (See Doc. 11, at 2 & 7 (disputing only the amount in controversy).) "Therefore, the only jurisdictional issue concerns whether the amount in controversy requirement has been satisfied." Williams v. Best Buy Company, Inc., 269 F.3d 1316, 1319 (11th Cir. 2001).
This action was removed from the Circuit Court of Baldwin County, Alabama in accordance with the first paragraph of 28 U.S.C. § 1446(b) ("The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]"), the complaint having been filed on September 27, 2011 (Doc. 1, Exhibit A, COMPLAINT, at 1) and the defendants having been served on either October 3, 2011 (Deutsche Bank and Countrywide), October 4, 2011 (MERS), or October 5, 2011 (Bank of America). (See Doc. 1, ¶ 9.) The first paragraph of § 1446(b) does not "restrict the type of evidence that a defendant may use to satisfy the jurisdictional requirements for removal." Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 771 (11th Cir. 2010); see also id. at 759 (a removing defendant can offer its "own affidavits or other evidence to establish federal removal jurisdiction[,]"); id. at 755 & 756 ("The substantive jurisdictional requirements of removal do not limit the types of evidence that may be used to satisfy the preponderance of the evidence standard. Defendants may introduce their own affidavits, declarations, or other documentation-provided of course that removal is procedurally proper. . . . The other circuit courts of appeal that have addressed the issue agree with our circuit law that defendants may submit a wide range of evidence in order to satisfy the jurisdictional requirements of removal. . . . No court of appeals decision we could find holds that a defendant may not submit its own evidence in order to satisfy the jurisdictional requirements of removal, and we conclude that the defendant can."); id. at 761 ("Lowery's `receipt from the plaintiff' rule has no application to cases, like this one, which are removed under the first paragraph of § 1446(b)."). Moreover, "Lowery did not say, much less purport to hold, that the use of deduction, inference, or other extrapolation of the amount in controversy is impermissible," id. at 753; see also id. ("A different question is presented [] when a removing defendant makes specific factual allegations establishing jurisdiction and can support them (if challenged by the plaintiff or the court) with evidence combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations. That kind of reasoning is not akin to conjecture, speculation, or star gazing."); id. at 770 ("It is true that `[n]othing in Lowery says a district court must suspend reality or shelve common sense in determining whether the face of a complaint, or other document, establishes the jurisdictional amount.' . . . And viewing facts through the lens of common sense is not star gazing."), and "a removing defendant is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it." Id. at 754; see also id. ("The law does not demand perfect knowledge or depend any less on reasonable inferences and deductions then we all do in everyday life."). In this regard, the removing defendants attached to their notice of removal records maintained by the Baldwin County Revenue Commissioner reflecting that the property at 448 Clubhouse Drive in Fairhope, Alabama has an appraised and assessed value, for the 2011 tax year, of $332,600. (See Doc. 1, Exhibit B.)
When declaratory and injunctive relief is sought, as here, "`it is well established that the amount in controversy is measured by the value of the object of the litigation.'" Ericsson GE Mobile Communications, Inc. v. Motorola Communications & Electronics, Inc., 120 F.3d 216, 218 (11th Cir. 1997), quoting Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 347, 97 S.Ct. 2434, 2443, 53 L.Ed.2d 383 (1977). Stated differently, "the value of the requested injunctive relief is the monetary value of the benefit that would flow to the plaintiff if the injunction were granted." Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir.), cert. denied, 531 U.S. 957, 121 S.Ct. 381, 148 L.Ed.2d 294 (2000); see also Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1268 (11th Cir. 2000) ("`[T]he value of the requested injunctive relief is the monetary value of the benefit that would flow to the plaintiff if the injunction were granted.'"). Clearly, therefore, the value of the object of the litigation is measured solely from the plaintiffs' perspective, not the defendants' perspective. See Ericsson GE Mobile Communications, Inc., supra, 120 F.3d at 219-220.
In this case, therefore, the undersigned must determine the value to the Berrys of enjoining the foreclosure of their home, as they indisputably demand in their complaint, among other things, a "permanent injunction restraining the Defendants . . . from selling, attempting to sell, or causing to be sold the Property [at 448 Clubhouse Drive, Fairhope, Alabama] either under the power of sale clause contained in the deed of trust or by a judicial foreclosure action." (Doc. 1, Exhibit A, COMPLAINT, at 6.) The undersigned agrees with those cases which have indicated that since foreclosure would require the homeowners to forfeit not only their right to peacefully possess and enjoy their home but, as well, their title to the house, "`[i]n monetary terms, these benefits, objects, and rights are best measured by the value of the home itself.'"
In this case, as established by the defendants' attachment to the removal petition (Doc. 1, Exhibit B), the assessed and appraised value of the property at 448 Clubhouse Drive, Fairhope, Alabama, that is, the Berrys' home, for tax year 2011, was $332,600.00.
For the reasons set forth above, it is
The instructions which follow the undersigned's signature contain important information regarding objections to the report and recommendation of the Magistrate Judge.
l. Objection. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.
