United States District Court, D. Minnesota
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-2, Plaintiff,
EMAD Y. ABED; MORTGAGE ELECTRONIC REGISTRATION SERVICES, INC., as nominee for Homecomings Financial, LLC F/K/A Homecomings Financial Network, Inc.; LARIVE CONDOMINIUM ASSOCIATION; UNITED STATES OF AMERICA; JOHN DOE; and MARY ROE, Defendants.
D. Kemper and Kristina Kaluza, DYKEMA GOSSETT, PLLC; John P.
Dockry and Kalli L. Ostlie, SHAPIRO & ZIELKE, LLP, for
Y. Abed, pro se.
PATRICK J. SCHILTZ, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant Emad Abed's
objection to the December 19, 2016 Report and Recommendation
(“R&R”) of Magistrate Judge Steven E.
Judge Rau recommends granting the motion of plaintiff
Deutsche Bank National Trust Company (“Deutsche
Bank”) to remand. The Court has conducted a de novo
review. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Based on that review, the Court overrules Abed's
objection and grants Deutsche Bank's motion to remand.
are several problems with Abed's attempt to remove this
case to federal court:
Abed asserts that this Court has federal-question
jurisdiction because Abed has alleged counterclaims arising
under federal law. 28 U.S.C. § 1331. But a counterclaim
cannot provide the basis for federal-question jurisdiction.
See Holmes Grp., Inc. v. Vornado Air Circulation Sys.,
Inc., 535 U.S. 826, 830-32 (2002). Deutsche Bank's
complaint against Abed does not assert any claim that arises
under the Constitution or laws of the United States, and
therefore this Court does not have federal-question
jurisdiction over this case.
in his notice of removal, Abed asserts that there is also
diversity jurisdiction because he is a “resident”
of Minnesota and Deutsche Bank is not. ECF No. 1 ¶¶
8-9. This, however, is insufficient to establish diversity
jurisdiction, as such jurisdiction depends on the citizenship
of the parties, not their residence. See Reece v. Bank of
N.Y. Mellon, 760 F.3d 771, 777 (8th Cir. 2014)
(“When it comes to diversity jurisdiction, the words
‘resident' and ‘citizen' are not
after Deutsche Bank moved to remand his lawsuit to state
court, Abed filed an opposing memorandum in which he asserted
that “he is a citizen of Minnesota.” ECF No. 29
at 3. That might have taken care of the problem with
Abed's notice of removal, but it created another problem.
The forum-defendant rule provides that a civil action cannot
be removed on the basis of diversity jurisdiction if any
defendant is a citizen of the state in which the action was
brought. 28 U.S.C. § 1441(b)(2). Abed is a citizen of
Minnesota, and he was sued in Minnesota, and thus (as Judge
Rau explained in the R&R), Abed may not remove this
action to federal court on the basis of diversity
in his objection to the R&R, Abed tries to evade the
forum-defendant rule brought to his attention by Judge Rau by
asserting that, even though he said in his notice of removal
that “he is resident of the State of Minnesota and . .
. his primary residence is 110 Bank St. Se. Suite 405
Minneapolis, Minnesota” [ECF No. 1 ¶ 8], and even
though he told Judge Rau that “he is a citizen of
Minnesota” [ECF No. 29 at 3], he is, in fact, “a
citizen of Dubai, UAE, ” ECF No. 32 at 3. Abed did not
raise this argument before Judge Rau, however, and thus he is
precluded from relying on it now. “A party cannot, in
his objections to an R&R, raise arguments that were not
clearly presented to the magistrate judge.” Hammann
v. 1-800 Ideas.com, Inc., 455 F.Supp.2d 942, 947-48 (D.
Minn. 2006) (citing Madol v. Dan Nelson Auto. Grp.,
372 F.3d 997, 1000 (8th Cir. 2004)); see also Ridenour v.
Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067
(8th Cir. 2012) (“The district court properly refused
to consider Ridenour's argument that longer statute of
limitations periods applied to his claims because this
argument was not presented first to the magistrate
that aside, as the party seeking to invoke this Court's
jurisdiction, Abed bears the burden of establishing diversity
of citizenship by a preponderance of the evidence. See In
re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th
Cir. 2010). Abed has not met his burden, as his belated claim
that he is not a citizen of Minnesota directly
conflicts with his earlier claim that he is a
citizen of Minnesota-and seems inconsistent with his earlier
claim that he is a resident of Minnesota and that his primary
residence is in Minneapolis. See Id. (“All
doubts about federal jurisdiction should be resolved in favor
of remand to state court.”).
of these reasons, Abed has failed to establish that this
Court has jurisdiction over this case.
on the foregoing, and on all of the files, records, and
proceedings herein, the Court OVERRULES defendant's
objection [ECF No. 32] and ADOPTS the ...