RILEY, Chief Judge.
After Gary Reece received a non judicial foreclosure notice, he obtained a temporary restraining order (TRO) against Bank of New York, Mellon (Mellon) in Arkansas state court. Over a year later, he amended his TRO complaint, seeking to represent a class of Arkansas homeowners facing non judicial foreclosures by Mellon. Mellon filed a notice of removal in federal court within thirty days of the amended complaint's filing. Reece moved to remand. The district court denied Reece's motion to remand and then granted Mellon's motion to dismiss. After Reece timely appealed those orders, the district court awarded Mellon $836.82 in costs despite Mellon's failure to file a verified affidavit substantiating the costs. Reece again appealed. Considering Reece's consolidated appeals under 28 U.S.C. § 1291, we affirm in part and reverse in part.
After receiving notice that his home in Little Rock, Arkansas, would be auctioned off pursuant to a non judicial foreclosure, Reece filed a complaint in Arkansas state court on October 15, 2010. The complaint sought a TRO permitting Reece "to stay in the home" and asserted Reece "will likely succeed in having the sale cancelled." The Arkansas state court granted Reece's request and "temporarily enjoined" Mellon "from conducting a sale of [Reece's] property." A hearing on February 22, 2011, led the Arkansas state court in its February 25, 2011, order to "question[] whether [Mellon] has demonstrated a substantial likelihood of prevailing on the merits of the case," and the court "stayed" the TRO "until the next hearing on the merits of this case." The parties delayed two hearings by mutual agreement until January 18, 2012, when Reece filed an amended complaint converting his case into a class action.
On February 10, 2012, Mellon filed a notice of removal in the U.S. District Court for the Eastern District of Arkansas. The notice invoked diversity and federal question jurisdiction. Reece moved to remand, asserting (1) Mellon filed its removal notice too late to comply with 28 U.S.C. § 1446, and (2) the district court lacked original jurisdiction over Mellon's federal question defenses to Reece's state law claims. Cf. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908) (holding a
On September 20, 2012, the district court filed a two-page order disposing of the case. Without mentioning 28 U.S.C. § 1446's one-year time limit or 28 U.S.C. § 1453(b)'s exemption of class actions from that limit, the district court denied Reece's motion to remand "because the class action complaint meets the requirements for federal diversity jurisdiction as specified in 28 U.S.C. § 1332." Then the district court granted Mellon's motion to dismiss, relying on an earlier decision in Rivera v. JPMorgan Chase Bank, 470 B.R. 829 (E.D.Ark. 2012), which "held that any national bank authorized by Congress to engage in the business of banking throughout the United States[] is authorized to do business, including foreclosures, in the state of Arkansas."
After the district court entered judgment against Reece on September 20, 2012, Reece timely appealed to this court. On January 2, 2013, the district court awarded Mellon $836.82 from Reece without mentioning Mellon's failure to file an affidavit verifying the costs were necessary and reasonable. Cf. 28 U.S.C. § 1924. Reece also appeals the district court's grant of Mellon's motion for costs.
"`On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900)). The jurisdictional question in this case is more complex than revealed by the district court's analysis.
Reece commenced this case on October 15, 2010, by filing a complaint in Arkansas state court. Ordinarily, 28 U.S.C. § 1446(b) gives a defendant thirty days to remove a complaint to federal court, but Reece only sought equitable relief (an injunction prohibiting Mellon's non judicial foreclosure of his home), so Mellon was not obligated to remove to federal court within the thirty-day period. See, e.g., Knudson v. Sys. Painters, Inc., 634 F.3d 968, 974 (8th Cir.2011) ("[S]ince [the] complaint did not explicitly state the amount in controversy, [the] complaint did
As "the case stated by the initial pleading [was] not removable," Mellon was permitted to remove "within 30 days after rec[eiving] ... a copy of an amended pleading, motion, order or other paper from which it [could] first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3) (emphasis added). But, according to Reece, Mellon also faced a bright-line time limit for filing the notice of removal:
28 U.S.C. § 1446(c)(1) (emphasis added).
Mellon did not file its notice of removal until February 10, 2012, almost four months past the one-year limit in § 1446(c)(1). Mellon first attempts to circumvent the limit, which only applies to diversity jurisdiction, by invoking federal question jurisdiction. This attempt — predicated on the theory that foreclosure proceedings have been "completely preempted" by federal law — is unpersuasive. That nationally chartered banks must, incident to their authorization to make mortgage loans, have the ability to foreclose when the mortgagor defaults, see JPMorgan Chase Bank, N.A. v. Johnson, 719 F.3d 1010, 1017-18 (8th Cir.2013), does not mean federal courts have original jurisdiction over foreclosures. To the contrary, federal regulations provide that "State laws on the ... subject[]" of "[r]ights to collect debts" "are not inconsistent with the real estate lending powers of national banks and apply to national banks."
Despite the district court not considering the issue, we conclude the § 1446(c)(1) one-year limit is inapplicable in this case based on 28 U.S.C. § 1453(b):
(Emphasis added).
Section 1453(a) defines the term "class action," by reference to § 1332(d)(1), as "any civil action filed under [Fed.R.Civ.P. 23] or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action," 28 U.S.C. § 1332(d)(1) (emphasis added). Reece's case plainly qualifies as a "class action" under § 1332(d)(1), so § 1453(b) exempts this case from § 1446(c)(1)'s one-year limit.
Reece's best counterargument is his theory that § 1453(b) applies solely to class actions under the Class Action Fairness Act of 2005 (CAFA), Pub.L. No. 109-2, 119 Stat. 4 (codified as amended in scattered sections of 28 U.S.C.), exceeding a higher amount in controversy: $5,000,000
CAFA jurisdiction with more than $5,000,000 in controversy requires only minimal diversity, meaning "any member of a class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. § 1332(d)(2)(A) (emphasis added). By contrast, if the parties to a class action are completely diverse (meaning every plaintiff is a citizen of a state different from every defendant), there is federal jurisdiction so long as one plaintiff's amount in controversy exceeds $75,000:
28 U.S.C. § 1332(a); see Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). In other words, a class action involving complete diversity may qualify for federal jurisdiction under § 1332(a), by showing at least one plaintiff has more than $75,000 at issue, or § 1332(d), by showing all plaintiffs together have more than $5,000,000 at issue. But a class action involving minimal diversity qualifies for federal jurisdiction only if the amount in controversy exceeds $5,000,000. See 28 U.S.C. § 1332(d).
Regardless of how federal jurisdiction over a class action arises, § 1453(b) unambiguously provides that the one-year removal limit in § 1446(c)(1) does not apply.
While § 1453(b) resolves one jurisdictional difficulty, it reveals another. Because there is no basis to find more than $5,000,000 at stake, this case qualifies for federal diversity jurisdiction only if the amount in controversy exceeds $75,000 and "the matter ... is between[] citizens of different States." 28 U.S.C. § 1332(a)(1) (emphasis added). Yet Mellon's removal notice merely specifies that Reece's
Despite our admonition "to be attentive to a satisfaction of jurisdictional requirements in all cases," Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987), the district court summarily announced "[t]he class action complaint establishes diversity of citizenship by stating that Reece and the entire plaintiff class are residents of the state of Arkansas." (Emphasis added). This conclusion is doubly flawed. First, the citizenship of "the entire plaintiff class" has no bearing on the jurisdictional inquiry. Diversity jurisdiction in a class action depends solely on the citizenship of the named parties. See Snyder v. Harris, 394 U.S. 332, 340, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969) ("[I]f one member of a class is of diverse citizenship from the class' opponent, and no nondiverse members are named parties, the suit may be brought in federal court even though all other members of the class are citizens of the same State as the defendant."). Reece is the only named plaintiff.
Second, it is simply incorrect to say Reece's Arkansas residency establishes Arkansas citizenship for the purpose of diversity jurisdiction. See Dale v. Weller, 956 F.2d 813, 815 (8th Cir.1992); Sanders, 823 F.2d at 216. As Judge Richard S. Arnold wrote for our court in Dubach, "Though the" removal notice "mentioned diversity jurisdiction, it improperly used the word `resident' instead of `citizen' to plead such jurisdiction." Dubach, 135 F.3d at 593. For this reason, we could not affirm without looking beyond the district court's incomplete explanation, and we requested supplemental briefing from the parties.
Mellon's supplemental brief initially maintains the "notice of removal sufficiently asserted diversity of citizenship by alleging that this action `is between citizens of different states.'" Setting aside the conclusory nature of Mellon's allegation, it is not enough for the parties to be diverse only at the time of removal. Nearly two centuries of precedent establish diversity of citizenship must also exist at the time of commencement. See, e.g., Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 565, 7 L.Ed. 518 (1829) (Marshall, C.J.). "This time-of-filing rule is hornbook law (quite literally) taught to first-year law students in any basic course on federal civil procedure." Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 570-71, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (footnote omitted). In Phoenix Ins. Co. v. Pechner, 95 U.S. 183, 186, 24 L.Ed. 427 (1877), for example, the Supreme Court deemed insufficient a "petition for removal" which "simply stated that the plaintiff is — that is to say, was at that date — a citizen of" a different state from the defendant.
As we said in a recent jurisdictional remand, "For a party to remove a case to federal court based on diversity jurisdiction, the parties must be diverse both when the plaintiff initiates the action in state court and when the defendant files the notice of removal in federal court." Chavez-Lavagnino, 714 F.3d at 1056. In this case, Mellon's notice of removal is defective because it fails to specify Reece's "citizenship when the suit was commenced." Phoenix, 95 U.S. at 186 (emphasis added). The allegation that Reece was an Arkansas "resident" is inadequate. See, e.g., Dubach, 135 F.3d at 593. This is not a mere technicality: we have an independent obligation to ensure the party asking us to exercise jurisdiction has proved we have jurisdiction to exercise. See, e.g., Chavez-Lavagnino, 714 F.3d at
Citizenship requires permanence. The Fourteenth Amendment establishes that U.S. citizens are "citizens ... of the State wherein they reside." U.S. Const. amend. XIV, § 1 (emphasis added). To "reside" — in contrast to the related and less precise word "resident" — means to "have one's permanent home in a particular place."
In addition to submitting, incorrectly, that there was no defect in the notice of removal, Mellon alternatively "requests that the Court deem the notice of removal amended" to state Reece's citizenship. In his supplemental brief, Reece submits he was an Arkansas citizen both when the case commenced and when Mellon removed to federal court. In light of Reece's submission, we exercise our discretion to deem the defective pleadings properly amended. See 28 U.S.C. § 1653; Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) ("The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases."); Mathews v. Diaz, 426 U.S. 67, 75 & n. 9, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (recognizing "the statutory purpose of avoiding needless sacrifice to defective pleading" and "treat[ing] the pleadings as properly supplemented"); Barclay Square Props. v. Midw. Fed. Sav. & Loan Ass'n of Minneapolis, 893 F.2d 968, 969 (8th Cir.1990) ("This court may treat the complaint as amended to properly allege diversity of citizenship and address the merits of the appeal if the record establishes that diversity actually existed in the district court.").
Because (1) the amount in controversy exceeds $75,000,
Reece's challenge to the district court's dismissal of his complaint under Rule 12(b)(6) is foreclosed by our decision in JPMorgan, 719 F.3d at 1018. See Mader v. United States, 654 F.3d 794, 800 (8th Cir.2011) (en banc). In JPMorgan, we held that federal law may authorize a national bank "to do business in Arkansas" and "avail itself of the benefit of" the non judicial foreclosure procedures which Reece challenges. JPMorgan, 719 F.3d at 1018. Following JPMorgan, our de novo review leads to the inescapable conclusion that the district court properly dismissed Reece's case — which alleges Mellon is not authorized to use Arkansas' non judicial foreclosure procedures — for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6); see, e.g., Dannix Painting, LLC v. Sherwin-Williams Co., 732 F.3d 902, 905 (8th Cir. 2013) (reviewing de novo a Rule 12(b)(6) dismissal).
Turning to Reece's final challenge, we conclude the district court legally erred in awarding costs to Mellon. See, e.g., Winter v. Novartis Pharm. Corp., 739 F.3d 405, 411 (8th Cir.2014) (reviewing "the legal issues about the award of costs" de novo, but reviewing "the actual award of costs" for abuse of discretion).
Before a district court is permitted to award costs to a prevailing party, the prevailing party must submit an affidavit meeting non-discretionary statutory requirements:
28 U.S.C. § 1924 (emphasis added).
Mellon provided no such affidavit, instead supplying the court with an unverified motion which failed to specify each item claimed was "correct," "necessarily incurred," and related to services "actually and necessarily performed." Id. Although Mellon also submitted a bill of costs form (AO 133) containing a standardized declaration "under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and that the services for which fees have been charged were actually and necessarily performed," Mellon's counsel inexplicably failed to sign this declaration.
Because the statute leaves no room for discretion, Mellon is prohibited from receiving an award of costs.
We affirm the denial of Reece's motion to remand and the dismissal of his case. We reverse the award of costs and remand with instructions to deny Mellon's motion for costs.