Jean-Louis v. Carrington Mtg. Servs., LLC

20-1117-cv
Jean-Louis v. Carrington Mtg. Servs., LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 4th day of March, two thousand twenty-one.
PRESENT: JOSÉ A. CABRANES,
REENA RAGGI,
Circuit Judges,
LEWIS A. KAPLAN,
Judge. *
VALENTIN JEAN-LOUIS,
Plaintiff-Appellant, 20-1117-cv
v.
CARRINGTON MORTGAGE SERVICES, LLC, DOES
1-10,
Defendants-Appellees.
FOR PLAINTIFF-APPELLANT: Nkereuwem Umoh, Umoh Law Firm,
PLLC, Brooklyn, NY.
* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York,
sitting by designation.
1
FOR DEFENDANTS-APPELLEES: Kenneth Jude Flickinger, Eckert,
Seamans, Cherin & Mellott, LLC, White
Plains, NY.
Appeal from a March 5, 2020 judgment of the United States District Court for the Eastern
District of New York (I. Leo Glasser, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.
Plaintiff-Appellant Valentin Jean-Louis (“Jean-Louis”) appeals from a judgment of the
District Court, 1 granting Defendant-Appellee Carrington Mortgage Services, LLC’s (“CMS”) motion
to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(2) for lack of
personal jurisdiction 2 and denying Jean-Louis’s motion to certify an interlocutory appeal of the
District Court’s October 22, 2019 order, 3 which denied Jean-Louis’s motion to remand to state court
for lack of diversity jurisdiction.
Jean-Louis brought this action against CMS seeking damages for civil theft, negligence,
negligence per se, and conversion in the New York State Supreme Court, Queens County, his
county of residence. CMS provided mortgage services to a residence in Norwich, Connecticut that
Jean-Louis did not own, but in which he stored personal property. After the mortgage on the home
was foreclosed, Jean-Louis alleges that CMS entered the premises without notice and either stole his
property or negligently left the residence unlocked and thus enabled his property to be stolen.
CMS removed the case to the District Court based on diversity of citizenship. That court
concluded that CMS was not subject to personal jurisdiction under New York Civil Practice Laws
and Rules (“CPLR”) Sections 301 or 302(a)(3) and dismissed the case. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
1
Jean-Louis v. Carrington Mtg. Servs., No. 19-CV-4302 (E.D.N.Y. Mar. 5, 2020), ECF No. 41.
2
Jean-Louis v. Carrington Mtg. Servs., No. 19-CV-4302, 2020 WL 1042644 (E.D.N.Y. Mar. 4, 2020).
3
Jean-Louis v. Carrington Mtg. Servs., No. 19-CV-4302, 2019 WL 5394570 (E.D.N.Y. Oct. 22,
2019).
2
A. Motion to Remand
We review de novo a district court’s denial of a motion to remand. 4 Under 28 U.S.C.
§ 1441(a), a defendant removing a civil action to federal district court “bears the burden of
demonstrating the propriety of removal,” 5 which is determined by the pleadings at the time of
removal. 6 A federal district court has diversity jurisdiction over civil actions with an amount in
controversy exceeding $75,000, exclusive of interests and costs, between citizens of different States. 7
For the reasons discussed below, we hold that Jean-Louis’s motion to remand was properly denied.
i. Diversity of Citizenship
For purposes of diversity jurisdiction, a limited liability company has the citizenship of its
members. 8 Jean-Louis argues that, despite the sworn affidavit submitted by CMS affirming that
none of its members are citizens of New York, CMS’s status as an LLC requires it to specifically
identify the names and locations of each individual member of the LLC as proof that no members
are citizens of New York. We disagree. The sworn affidavit traced CMS’s ownership and identified
the citizenship of its member limited liability companies, limited partnerships (general and limited
partners included), and private individuals, and established that CMS is not a citizen of New York. 9
Thus, we affirm that CMS met its burden to show diversity of citizenship. 10
4
Shafii v. British Airways, PLC, 83 F.3d 566, 570 (2d Cir. 1996).
5
Grimo v. Blue Cross/Blue Shield, of Vt., 34 F.3d 148, 151 (2d Cir. 1994).
6
See Vera v. Saks & Co., 335 F.3d 109, 116 (2d Cir. 2003) (“[W]e generally evaluate a defendant’s
right to remove a case to federal court at the time the removal notice is filed.”).
7
28 U.S.C. § 1332(a).
8
Handelsman v. Bedford Vill. Assocs. Ltd. P’ship, 213 F.3d 48, 51–52 (2d Cir. 2000).
9
Cf. America’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992)
(“[O]nly the affidavit made on personal knowledge has any value . . . , and it is useless because it says
nothing about citizenship.”).
10
Jean-Louis fails to clarify his state of citizenship before this Court, as before the District
Court. Because Jean-Louis does not dispute the District Court’s finding that Jean-Louis is a New
York citizen, and because Jean-Louis’s counsel responded in the affirmative to the District Court’s
question of whether Jean-Louis “lives in New York permanently,” A.52 (emphasis added), we assume
that Jean-Louis is a New York citizen.
3
ii. Amount in Controversy
When a defendant seeks to remove a case to federal court and the plaintiff contests the
defendant’s amount-in-controversy allegation, “removal is proper on the basis of an amount in
controversy asserted by the defendant if the district court finds, by the preponderance of the
evidence, that the amount in controversy exceeds the jurisdictional threshold.” 11
At oral argument on Jean-Louis’s motion to remand, his counsel informed the District Court
that the $150,000 in damages alleged in the original complaint was due to an error of counsel that
was quickly rectified, and damages were instead only $60,000. Nevertheless, Jean-Louis’s claims
include the Connecticut intentional tort of “civil theft,” 12 for which treble damages are available. 13
Thus, Jean-Louis’s civil theft claim could allow him to recover $180,000, an amount that exceeds the
jurisdictional minimum of $75,000. 14
Therefore, we hold that the District Court had diversity jurisdiction over this case, and that
Jean-Louis’s motion to remand this case to state court was properly denied. 15
Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88 (2014) (internal quotation
11
marks and alterations omitted).
12
See A.63 (Jean-Louis’s counsel stating, at oral argument on the motion to remand, “I agree
with Your Honor that I believe Connecticut substantive law would apply in this case . . . because
civil theft is a Connecticut statutory claim that does not exist in New York”).
13
Conn. Gen. Stat. § 52–564 (“Any person who steals any property of another, or knowingly
receives and conceals stolen property, shall pay the owner treble his damages.”).
See A.F.A. Tours, Inc. v. Whitchurch, 937 F.2d 82, 87 (2d Cir. 1991) (“[I]f punitive damages are
14
permitted under the controlling law, the demand for such damages may be included in determining
whether the jurisdictional amount is satisfied.” (citing 14A Wright & Miller, Fed. Prac. & Proc.
§ 3702)).
15
Jean-Louis also argues on appeal that CMS’s removal of this case to federal court was
premature because the Amended Complaint did not state an amount in controversy. We find this
argument to be without merit. CMS did not improperly rely upon the original complaint’s allegation
of $150,000 in damages. Because “a defendant’s notice of removal [regarding amount in
controversy] need include only a plausible allegation that the amount in controversy exceeds the
jurisdictional threshold,” Dart Cherokee Basin Operating Co., 574 U.S. at 89, CMS’s motion to remove
this case to federal court based on the damages alleged in the original complaint was not premature.
Because Jean-Louis’s Amended Complaint was inconclusive as to damages asserted, “the courts may
look to documents outside the pleadings to other evidence in the record to determine the amount in
controversy.” Yong Qin Luo v. Mikel, 625 F.3d 772, 775 (2d Cir. 2010). “When a pleading is
amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission; but it
still remains as a statement once seriously made by an authorized agent, and as such it is competent
4
B. Personal Jurisdiction
On a Rule 12(b)(2) motion to dismiss, “the plaintiff bears the burden of establishing” the
district court’s “jurisdiction over the defendant under the relevant forum state’s laws.” 16 We review
de novo a district court’s dismissal for lack of personal jurisdiction, 17 construing all pleadings and
affidavits in the light most favorable to the plaintiff and resolving all doubts in the plaintiff’s favor. 18
On appeal, Jean-Louis argues that CMS’s significant contacts in New York subject it to specific
jurisdiction under CPLR Sections 302(a)(1) and (a)(3). We disagree.
“To determine the existence of jurisdiction under [S]ection 302(a)(1), a court must decide (1)
whether the defendant ‘transacts any business’ in New York and, if so, (2) whether this cause of
action ‘aris[es] from’ such a business transaction.” 19 While it is true that CMS transacts business in
New York, this subsection clearly does not apply, as this cause of action does not arise from CMS’s
business transactions in New York. CMS provided a mortgage on a residence in Connecticut, and
Jean-Louis makes no argument that this specific mortgage was in any way connected to New York.
Jean-Louis’s arguments under Section 302(a)(3) fare no better. Section 302(a)(3) permits
New York courts to exercise jurisdiction over tortious acts committed outside New York if certain
requirements are satisfied, but the act must “caus[e] injury to person or property within the state.” 20
As discussed by the District Court, New York does not become the situs of injury merely because
the plaintiff is a domiciliary or resident of New York. 21
evidence of the facts stated, though controvertible, like any other extrajudicial admission made by a
party or his agent. If the agent made the admission without adequate information, that goes to its
weight, not to its admissibility.” Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195, 198
(2d Cir.) (internal citations omitted), cert. denied, 280 U.S. 579 (1929); see also 28 U.S.C.
§ 1446(c)(3)(A).
16
Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999).
17
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001).
18
DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (per curiam).
19
Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (quoting Deutsche Bank Sec., Inc. v.
Mont. Bd. of Invs., 7 N.Y.3d 65, 71 (2006)).
20
N.Y. C.P.L.R. § 302(a)(3).
21
McGowan v. Smith, 52 N.Y.2d 268, 274–75 (1981).
5
Despite failing to cite CPLR Section 301 (or any statutory provision), Jean-Louis’s briefs on
appeal also argue that the district court erred by finding it lacked general jurisdiction over CMS. As
CMS is not “at home” in New York, the district court did not possess general jurisdiction over it. 22
CONCLUSION
We have reviewed all of the arguments raised by Jean-Louis on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the March 5, 2020 judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
22
See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).
6