FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          June 17, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
WAYNE ANDERSON;
KIMBERLY ANDERSON,

             Plaintiffs-Appellants,

v.                                                          No. 12-4135
                                                    (D.C. No. 2:11-CV-00584-TS)
LEHMAN BROTHERS BANK, FSB;                                    (D. Utah)
AURORA LOAN SERVICES, LLC;
JAMES H. WOODALL, Trustee;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS,

             Defendants-Appellees.


                             ORDER AND JUDGMENT*


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.


      Plaintiffs Wayne Anderson and Kimberly Anderson filed this action in Utah

state court, seeking to halt a foreclosure and/or to hold the foreclosing parties liable

for damages. The defendants removed the action to federal court on the basis of


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
diversity jurisdiction. Although one of the defendants, trustee James H. Woodall, is a

resident of Utah, we agree with the district court that his citizenship could be

disregarded because he was fraudulently joined as a defendant and/or was at best a

nominal party to the action. Having properly removed the case to federal court,

however, the district court should have dismissed Woodall without prejudice for lack

of jurisdiction. We therefore remand with instructions to modify the dismissal on the

merits of the claim against Woodall to a dismissal without prejudice.

                                   BACKGROUND

       The Andersons executed a deed of trust to secure the payment of a promissory

note. In the deed of trust, the Andersons were identified as borrowers, Lehman

Brothers Bank, FSB (Lehman Brothers) as “lender,” Southern Utah Title as “trustee,”

and Mortgage Electronic Registration Systems (MERS) as the nominee for lender’s

successors and assigns, and as beneficiary.

       MERS later appointed defendant James H. Woodall, a Utah resident, as

successor trustee. Mr. Woodall recorded a notice of default. MERS assigned

Lehman Brothers’ interest in the deed of trust to defendant Aurora Loan Services

LLC.

       The Andersons then filed suit in state court, asserting two causes of action:

“quiet title and declaratory judgment pursuant to Utah Code Ann. § 57-1-23.5 and the

Uniform Commercial Code.” Aplt. App. at 10. The defendants removed the suit to

federal court, where they filed a motion to dismiss.


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      The Andersons voluntarily dismissed their quiet title cause of action and the

declaratory cause of action to the extent it was based on a “show me the note” theory.

This left only their § 57-1-23.5 claim, based on a Utah statute providing that “[a]n

unauthorized person who conducts an unauthorized [trustee’s] sale is liable to the

trustor for actual damages suffered by the trustor as a result of the unauthorized sale

or $2,000, whichever is greater.” Utah Code Ann. § 57-1-23.5(2)(a).

      The Andersons filed a motion to remand the case to state court. The district

court denied the motion to remand and dismissed the remaining claim against

Mr. Woodall on the merits. It dismissed because it concluded that § 57-1-23.5,

which was enacted after Mr. Woodall filed his notice of default, could not be applied

retroactively to Mr. Woodall’s conduct.

                                      ANALYSIS


      1. Motion to Remand

      A defendant may remove a civil action brought in state court to federal court if

“the district courts of the United States have original jurisdiction” over the action.

28 U.S.C. § 1441(a). This court reviews de novo whether a case was removable to

federal court. Frederick v. Hartford Underwriters Ins. Co., 

, 1245

(10th Cir. 2012). There is a presumption against removal jurisdiction, Laughlin v.

Kmart Corp., 

, 873 (10th Cir. 1995), and the party seeking removal has

the burden of proof to establish jurisdiction, Martin v. Franklin Capital Corp.,

, 1290 (10th Cir. 2001).

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      Diversity jurisdiction, the basis for removal here, exists when the

amount-in-controversy requirement is met and the parties are completely diverse.

See 28 U.S.C. § 1332(a). Both the Andersons and Woodall are citizens of Utah and

are therefore non-diverse. But the district court cited two reasons for disregarding

Woodall in its diversity analysis: (1) he had been fraudulently joined, and (2) as

trustee under a deed of trust, he was only a “nominal party.”

      Fraudulent joinder need not involve actual fraud in the technical sense.

Instead, it can occur when the plaintiff joins a “resident defendant against whom no

cause of action is stated” in order to prevent removal under a federal court’s diversity

jurisdiction. Dodd v. Fawcett Pubs., Inc., 

, 85 (10th Cir. 1964). When

this occurs, the district court disregards the fraudulently joined non-diverse party for

removal purposes. In addition, “the ‘citizens’ upon whose diversity a plaintiff

grounds jurisdiction must be real and substantial parties to the controversy. Thus, a

federal court must disregard nominal or formal parties and rest jurisdiction only upon

the citizenship of real parties to the controversy.” Lenon v. St. Paul Mercury Ins.

Co., 

, 1369 (10th Cir. 1998) (internal quotation marks omitted).

      We ordered the parties to brief the issue of whether the district court properly

determined that Woodall had been fraudulently joined and/or was only a nominal

party to this dispute. In their supplemental brief, the Andersons essentially conceded




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that Woodall was not a viable party to their complaint,1 and requested that this case

be remanded to the district court for dismissal. Based on the district court’s

uncontested analysis, we agree that the complaint fails to state a colorable cause of

action against Woodall. We therefore conclude that the case was properly removed

to federal court notwithstanding Woodall’s Utah citizenship.

      Once it determined that Woodall had been fraudulently joined, however, the

district court lacked jurisdiction to enter judgment on the merits on the claims against

him. Rather, it was required to dismiss him from the case without prejudice.

See, e.g., Albert v. Smith’s Food & Drug Ctrs., Inc., 

, 1249 (10th Cir.

2004).2 We must therefore vacate the district court’s dismissal on the merits of the




1
       The Andersons cited as controlling adverse authority this court’s decision in
Brazell v. Waite, No. 12-4047, 

(10th Cir. June 4, 2013), in which
we held that a Utah trustee against whom similar claims were asserted “was
fraudulently joined or a nominal party with respect to all claims against him.” 

Andersons requested “that the Court dispose of this case in the manner it
did in Brazell.” Aplt. Response to Order Directing Supplemental Briefing, at 1.
2
       In his response to our supplemental briefing order, Woodall argues that under
authority predating Albert, “a dismissal on the merits as to the fraudulently joined
party [is] within the jurisdiction of the trial court.” Woodall’s Supp. Br. at 12. But
as we recognized in 

n.3, circuit authorities permitting a
dismissal on the merits of claims against a fraudulently joined party predate the
Supreme Court’s decision in Steel Co. v. Citizens for a Better Environment, 

(1998). In Steel Co., the Supreme Court specifically rejected the ability of a
federal court to rule on the merits of claims over which it lacks jurisdiction. See 

therefore do not find these prior circuit authorities persuasive.


                                         -5-
Andersons’ complaint against Woodall, and remand with instructions to modify the

dismissal to one “without prejudice” for lack of jurisdiction.3

                                    CONCLUSION
       We vacate the district court’s dismissal on the merits of the claim against

Woodall, and remand with instructions to enter a dismissal without prejudice for lack

of jurisdiction.

                                                Entered for the Court


                                                Stephen H. Anderson
                                                Circuit Judge




3
       In district court the Lehman Defendants (collectively, Lehman Brothers,
Aurora, and MERS) argued they were still part of the action, notwithstanding the
Andersons’ prior voluntary dismissal, because the Andersons “purport[ed] to name
them as ‘unauthorized persons’ under . . . § 57-1-23.5.” Aplt. App. at 16. The
district court therefore addressed the § 57-1-23.5 claim against these defendants. It
again concluded that the statute could not be retroactively applied. It also expressed
skepticism that the statute could be applied at all against the Lehman Defendants,
who had not acted as trustees in exercising a power of sale with regard to the
Andersons’ property. Accordingly, it dismissed the § 57-1-23.5 claim against the
Lehman Defendants for failure to state a claim. Although the Lehman Defendants
have filed a separate brief in this appeal, the Andersons do not address the claims
against them at all in their brief and we conclude that the Andersons have waived any
appeal of the district court’s order with respect to the Lehman Defendants. Thus, we will
not further address that dismissal.


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