Opinion
Civil Action No. 1.06-cv-215-GET.
April 6, 2006
ORDER
The above-styled matter is presently before the court on:
(1) plaintiff's motion to remand [docket no. 7];
(2) Realty Mortgage Corporation, RealNet Financial Corporation and RealNet Financial Ltd's motion for leave to file a surreply brief to plaintiff's motion to remand [docket no. 21].
On December 9, 2005, plaintiff filed this action in the Superior Court of DeKalb County against numerous defendants asserting claims for (1) violations of the Georgia Racketeer Influenced and Corrupt Organizations Act; (2) fraud; (3) negligence; (4) breach of contract; (5) violations of the Fair Business Practices Act; and (6) violations of O.C.G.A. § 7-7-1 et. seq. On January 31, 2006, defendants Realty Mortgage Corporation, RealNet Financial Corporation and RealNet Financial Ltd. ("the Realty defendants") removed the action to this court pursuant to 28 U.S.C. §§ 1331, 1332, 1441 (a) (b). The Realty defendants assert that federal question jurisdiction is present because plaintiff has alleged that defendants committed mail fraud in violation of 18 U.S.C. § 1341 and wire fraud in violation of 18 U.S.C. § 1343. The Realty defendants also contend that the amount in controversy exceeds the sum of $75,000 and involves citizens of different states.
On February 20, 2006, plaintiff filed a motion to remand arguing that the alleged violations of federal mail and wire fraud statutes are asserted as predicate acts to the Georgia RICO claim and are not sufficiently substantial to confer federal question jurisdiction. On March 22, 2006, plaintiff filed a reply brief in support of his motion to remand in which plaintiff argues that the Realty defendants' Notice of Removal was untimely and failed to include all defendants. Plaintiff also argues that removal based on diversity jurisdiction is improper because two of the defendants are citizens of Georgia.
The Realty defendants request leave to file a surreply to address plaintiff's arguments related to the alleged defects in the removal and the Georgia citizenship of two of the defendants. As the surreply addresses arguments raised by plaintiff for the first time in his reply brief, the court hereby GRANTS the Realty defendants' motion to file a surreply [docket no. 21] and this surreply has been considered in resolving plaintiff's motion for remand.
"A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. 1447(c). Having reviewed plaintiff's motion to remand, the court fails to discern any argument raised by plaintiff prior to his reply brief pertaining to procedural defects in removal as a basis for remand. Therefore, any objection to the Notice of Removal on the basis of procedural defect has been waived, as it was first asserted on March 22, 2006, more than 30 days after the Notice of Removal was filed.See Wilson v. General Motors Corp., 888 F.2d 779, 781 (11th Cir. 1989) (stating time limit for removal petition merely a formal requirement and not jurisdictional).
"The failure to join all defendants in the petition [for remand] is a defect in the removal procedure" Hernandez v. Seminole County, Florida, 334 F.3d 1233, 1236-37 (11th Cir. 2003). Likewise, the rule that resident defendants may not remove cases otherwise within federal jurisdiction, known as the forum defendant rule, also is a procedural rule and does not affect the court's subject matter jurisdiction. See Murphy v. Aventis Pasteur, Inc., 270 F. Supp.2d 1368, 1374-75 (N.D. Ga. 2003) (noting Eleventh Circuit has suggested such a rule is procedural but has not definitively addressed the issue); Korea Exchange Bank v. Trackwise Sales Carp., 66 F.3d 46, 50 (3d Cir. 1995) (finding that "almost every other court of appeals that has addressed the issue" has found the forum defendant rule to be procedural) As the forum defendant rule and the unanimity rule are procedural defects which must be raised within 30 days for the Notice of Removal, plaintiff's assertion of these defects in his reply brief is untimely.
Plaintiff is a citizen of California. Defendants are citizens of Tennessee, Mississippi, Texas, and Georgia. Likewise, the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. Therefore, this court has subject matter jurisdiction over this action based on diversity of citizenship. Because the court has subject matter jurisdiction over this action based on diversity of citizenship, the court need not address the question of subject matter jurisdiction based on federal question. Accordingly, plaintiff's motion to remand [docket no. 7] is DENIED.
Summary
(1) Plaintiff's motion to remand [docket no. 7] is DENIED;
(2) Realty Mortgage Corporation, RealNet Financial Corporation and RealNet Financial Ltd's motion for leave to file a surreply brief to plaintiff's motion to remand [docket no. 21] is GRANTED. SO ORDERED.