ORDER. IT IS ORDERED that Plaintiff's Motion to Remand (ECF No. 7 ) is GRANTED. This case is to be remanded to the state court from which it was removed for all further proceedings. IT IS FURTHER ORDERED that Plaintiff's Motion for Attorn ey's Fees and Costs (ECF No. 8 ) is DENIED. IT IS FURTHER ORDERED that Defendants Commonwealth Land Title Insurance Company's and Fidelity National Title Insurance Company's Motions to Dismiss (ECF No. 26 , 34 ) are DENIED as moot. IT IS FURTHER ORDERED that Defendant Fidelity National Title Group, Inc.'s Motions to Dismiss (ECF Nos. 29 , 39 ) are DENIED as moot. IT IS FURTHER ORDERED that Defendants Chicago Title of Nevada, Inc.'s and Fidelity National Title Agency of Nevada, Inc.'s Motions to Dismiss (ECF Nos. 30 , 37 ) are DENIED as moot. The Clerk of the Court is instructed to close this case. Signed by Judge Cristina D. Silva on 7/18/2022.; Case terminated. (Copies have been distributed pursuant to the NEF - certified copy of order and docket mailed to state court - HAM)
1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 5 BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS 6 SERVICING, LP, 7 8 Plaintiffs Case No. 2:21-cv-00348-CDS-BNW Order v. 9 FIDELITY NATIONAL TITLE GROUP, INC.; FIDELITY NATIONAL TITLE INSURANCE 10 COMPANY, INC.; COMMONWEALTH LAND TITLE INSURANCE COMPANY; 11 CHICAGO TITLE OF NEVADA, INC.; FIDELITY NATIONAL TITLE AGENCY OF 12 NEVADA, INC.; DOE INDIVIDUALS I through X; and ROE CORPORATIONS XI 13 through XX, inclusive, 14 Defendants. 15 16 Before the Court are Plaintiff Bank of America, N.A.’s Motions to Remand and for 17 Attorney’s Fees and Costs (ECF Nos. 7,8), Defendants Commonwealth Land Title Insurance 18 Company’s and Fidelity National Title Insurance Company’s Motions to Dismiss (ECF No. 26, 19 34), Defendant Fidelity National Title Group, Inc.’s Motions to Dismiss (ECF Nos. 29, 39), and 20 Defendants Chicago Title of Nevada, Inc.’s and Fidelity National Title Agency of Nevada, Inc.’s 21 Motions to Dismiss (ECF Nos. 30, 37). 22 For the reasons expressed below, Plaintiff’s Motion to Remand this action to state court 23 is GRANTED, Plaintiff’s Motion for Attorney’s Fees and Costs is DENIED, and the Defendants’ 24 Motions to Dismiss are collectively DENIED as moot. 1 Relevant Background Information 2 Plaintiff Bank of America, N.A. (“BANA”) initiated this litigation on March 1, 2021, in the 3 Eighth Judicial District Court in Clark County, Nevada asserting breach of contract and 4 insurance bad faith causes of action. ECF No. 1, Ex. 1. BANA sued Fidelity National Title 5 Insurance Company (“FNTIC”) (a Delaware corporation with principal place of business in 6 Florida), Fidelity National (successor in interest to United Title Insurance Company), 7 Commonwealth Land Title Insurance Company (“Commonwealth”) (a Pennsylvania 8 corporation with principal place of business in Florida), Chicago Title Nevada (a Nevada 9 corporation with principal place of business in Nevada), and Fidelity Nevada (a Nevada 10 corporation with principal place of business in Nevada). Id. Chicago Title Nevada and Fidelity 11 Nevada are the only defendants that are Nevada entities. 1 12 The same day that BANA filed in state court, FNTIC and Commonwealth removed this 13 action to federal court. ECF No. 1. Given the immediacy of the removal, none of the defendants 14 had been served prior to removal. Id. at 2. This tactic of removing a diversity case before the 15 forum defendants have been served is termed “snap removal.” See, e.g., Deutsche Bank Nat’l Trust Co. v. 16 Fidelity Nat’l Title Grp., Inc., 2020 WL 7360680, at *1 (D. Nev. Dec. 14, 2020). The goal of snap 17 removal is to circumvent the forum defendant rule, which prohibits removal when any 18 defendant “properly joined and served” is a forum defendant. 28 U.S.C. § 1441(b)(2). 19 BANA now moves to remand to state court, arguing that removal was improper because 20 the presence of Fidelity Nevada, a forum defendant, defeats this Court’s diversity jurisdiction. 21 ECF No. 7 at 5. FNTIC and Commonwealth respond that removal was proper for a few reasons. 22 First, they assert that the “properly joined and served” language of § 1441(b)(2) compels this 23 Court to allow snap removals. ECF No. 31 at 6-7. Second, they assert that Fidelity Nevada is 24 improperly joined to defeat removal. Id. at 12-14. Third, they assert that Freddie Mac is a real 1 BANA notes that Chicago Nevada may have been inadvertently named. ECF No. 7 at 1. This Court analyzes infra whether Fidelity Nevada, the other forum defendant, was “properly joined.” 2 1 party in interest whose presence establishes this Court’s jurisdiction via federal question 2 jurisdiction. ECF No. 31 at 3-19. BANA replied that all three grounds for removal have no basis in 3 law and reiterated their request for the matter to be remanded to state court. ECF No. 32 at 2-3. 4 The Court first addresses Plaintiff’s Motion for Remand (ECF No. 7) and thereafter the 5 Defendants’ Motions to Dismiss (ECF Nos. 26, 29, 30, 34, 37). 6 I. 7 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power Motion for Remand 8 authorized by Constitution and statute.’” See U.S. Const. art. III, § 2, cl. 1; Gunn v. Minton, 568 U.S. 9 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). 10 When initiating a case, “[a] plaintiff is the master of [their] complaint, and has the choice of 11 pleading claims for relief under state or federal law (or both).” Hansen v. Grp. Health Coop., 902 F.3d 12 1051, 1056 (9th Cir. 2018) (citing Caterpillar Inc. v. Williams, 482 U.S. 368, 389-99 (1987). Generally, 13 plaintiffs are entitled to deference in their choice of forum. Ayco Farms, Inc. v. Ochoa, 862 F.3d 945, 14 949-50 (9th Cir. 2017). 15 However, Congress has enacted statutes that permit parties to remove cases originally 16 filed in state court to federal court. 28 U.S.C. § 1441. The general removal statute permits “the 17 defendant or the defendants” in a state-court action over which the federal courts would have 18 original jurisdiction to remove that action to federal court. Home Depot U.S.A., Inc. v. Jackson, 139 S. 19 Ct. 1743, 1746 (2019). “To remove under [§ 1441(a)], a party must meet the requirements for 20 removal detailed in other provisions.” Id. When federal jurisdiction is based solely on diversity 21 jurisdiction, the case “shall be removable only if none of the parties in interest properly joined 22 and served as defendants is a citizen of the State in which such action is brought,” 28 U.S.C. 23 § 1441(b)(2). Home Depot, 139 S. Ct. at 1746; see also Lively v. Wild Oaks Mkts., Inc., 456 F.3d 933, 939 24 (9th Cir. 2006) (describing the “forum defendant rule”). A defendant “always has the burden of 3 1 establishing that removal is proper” and must overcome a “strong presumption against removal 2 jurisdiction.” Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) 3 (internal quotation marks and citation omitted). Federal courts construe the removal statute 4 against removal. Id.; see also Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) 5 (“[A]ny doubt about the right of removal requires resolution in favor of remand.”). 6 i. 7 When a defendant in a non-diverse lawsuit seeks to remove a state-court action to Discussion regarding “snap removal” 8 federal court before a forum defendant is served with process, defendants circumvent the forum 9 defendant rule. This procedural loophole is called “snap removal.” It encourages defendants to 10 “race to the courthouse” to “make an end run around the forum defendant rule.” Gentile v. Biogen 11 Idec, Inc., 934 F. Supp. 2d 313, 316 (D. Mass. 2013). Courts that have confronted snap removal are 12 split. Compare Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705 (2d Cir. 2019) (“a home-state 13 defendant may in limited circumstances remove actions filed in state court on the basis of 14 diversity of citizenship”) and Encompass Ins. Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147, 153-54 15 (3d Cir. 2018) (“this result…allows [defendant] to use pre-service machinations to remove a case 16 that it otherwise could not; however, the outcome is not so outlandish as to constitute an 17 absurd or bizarre result”) and Texas Brine Co. v. Am. Arbitration Ass’n, 955 F.3d 482, 487 (5th Cir. 18 2020) (“[a] non-forum defendant may remove an otherwise removable case even when a named 19 defendant who has yet to be properly joined and served is a citizen of the forum state”) (internal 20 quotations omitted) with Goodwin v. Reynolds, 757 F.3d 1216, 1219 (11th Cir. 2014) (affirming a 21 district court’s dismissal without prejudice of a case that had been snap removed to federal court 22 so “that plaintiff could refile the case in state court in such a manner as to irrefutably trigger the 23 forum-defendant rule and…preclude a second removal”). The Ninth Circuit has not specifically 24 addressed snap removal, whereas noted above, other Circuits have endorsed the practice. 4 1 At the district court level, snap removals have sometimes been found to be proper under a strict 2 reading of the statute’s plain language. Little v. Wyndham Worldwide Ops., Inc., 251 F. Supp. 3d 1215, 3 1220 (M.D. Tenn. 2017) (collecting and summarizing cases); see also Terry v. J.D. Streett & Co., Inc., 4 2010 WL 3829201, at *2 (E.D. Mo. Sept. 23, 2010) (approving of snap removal based on statute’s 5 plain language). On the other hand, district courts that find snap removals improper tend to 6 analyze the purpose behind the forum defendant rule, the congressional intent behind that rule, 7 and evaluate whether allowing snap removals would produce an absurd result. Perez v. Forest 8 Labs., Inc., 902 F. Supp. 2d 1238, 1246 (E.D. Mo. 2012) (disapproving of snap removal based on 9 legislative intent), Perfect Output of Kansas City, LLC v. Ricoh Ams. Corp., 2012 WL 2921852, at *2 10 (W.D. Mo. July 17, 2012) (same); Delaughder v. Colonial Pipeline Co., 360 F Supp. 3d 1372, 1379 (N.D. 11 Ga. 2018) (“[T]he majority of courts that remanded snap removals did so on a legislative intent 12 rational, agreeing that the literal application of the statutory language favors snap removals.”); 13 Deutsche Bank Nat'l Tr. Co. v. Old Republic Title Ins. Grp., Inc., 532 F. Supp. 3d 1004, 1011 (D. Nev. 2021) 14 (finding the plain language of § 1441(b) ambiguous and that permitting snap removal would 15 produce an absurd result). 16 As evidenced by the collection of cases with differing results, courts “are in disarray on 17 the question” of snap removal. See Gentile, 934 F. Supp. 2d at 316 (collecting cases). Many district 18 courts seem to agree that the “properly joined and served” language plainly allows non-forum 19 defendants to remove cases prior to service upon forum defendants. Id. at 317. They differ as to 20 whether following that plain meaning is compulsory, or whether the result (of snap removal) is 21 so contrary to congressional purpose or absurd in result that the bar to removal ought to apply. 22 Id. 23 . . . 24 . . . 5 1 ii. 2 In sum, BANA argues that the claims in this case properly reside in state court. BANA The Parties’ Competing Arguments on the Propriety of Snap Removal 3 first argues that snap removal is contrary to precedent and further argues that removal was 4 defective because no defendant was served. ECF No. 7 at 7-8. Finally, BANA argues that even if 5 Fidelity National and Commonwealth could remove before service, the statute would not allow 6 that to defeat diversity of citizenship between adversarial parties. Id. at 9-10. 7 Fidelity National avers that BANA’s motion to remand requires this Court to disregard 8 the plain meaning of the statutory text of 28 U.S.C. § 1441(b)(2) precluding removal based on in9 state citizenship when the defendant has been properly joined and served. See ECF No. 31 at 2, 610 13. Fidelity acknowledges that the local agents in this case had not been served at the time of 11 removal but argues that the purpose of the removal statutes is to protect out-of-state 12 defendants, regardless of whether they have been served or not, and therefore removal before a 13 defendant is actually served should be allowed by the Court. See generally id. Fidelity further 14 argues that even if the Court disagrees with them regarding application of the removal statute, 15 the circumstances surrounding BANA’s joinder of parties, or as argued by Fidelity “misjoinder,” 16 that remand is nonetheless unwarranted, arguing that BANA fraudulently joined eighteen claims 17 in order to defeat diversity. Id. at 13-16. Last, Fidelity contends that, even foregoing the 18 aforementioned arguments in support of denying the motion for remand, the case should still 19 not remand because the case presents a federal question. Id. at 17-20. 20 As set forth below, the Court respectfully disagrees with Fidelity. 21 iii. 22 The Court has spent considerable time weighing the arguments set forth in moving Snap Removal is Improper 23 papers. Both parties present solid arguments in support of their positions on whether snap 24 removal is proper. After carefully considering the text and structure of the removal statute as a 6 1 whole, and strictly construing the removal statute against removal, this Court finds that snap 2 removal is an improper tactic and therefore Defendants were not permitted to remove the action 3 prior to their receipt of service. 4 Federal courts strictly construe the removal statute due to concerns regarding federal 5 courts infringing upon state sovereignty. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 6 (1941) (“Due regard for the rightful independence of state governments, which should actuate 7 federal courts, requires that they scrupulously confine their own jurisdiction to the precise 8 limits which the [removal] statute has defined.”). To avoid collision between state courts and 9 federal courts, “it is to be presumed that a cause lies outside” the limited jurisdiction of the 10 federal courts, “and the burden of establishing the contrary rests upon the party asserting 11 jurisdiction.” Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773-74 (9th Cir. 2017) (internal 12 quotations and citation omitted); Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th Cir. 13 2003) (defendants seeking to remove an action grounded in state law bear the burden to show 14 that “the complaint…is within the original jurisdiction of the district court”). This burden on a 15 removing defendant is especially heavy because “[t]he removal statute is strictly construed and 16 any doubt about the right of removal requires resolution in favor of remand.” Id. (emphasis 17 added) (citations omitted); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing 18 Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979) (“Federal jurisdiction must be 19 rejected if there is any doubt as to the right of removal in the first instance.”)). 20 Defendants cannot meet the high burden of jurisdiction because they cannot overcome 21 this Court’s doubts about their right of removal. This Court follows the many courts in this 22 District and nationwide which have found the plain meaning of the removal statute is at odds 23 with the purpose of the statute. 2 The language of 28 U.S.C. § 1441(b)(2) contravenes the 24 2 This Court recognizes that other courts have found the opposite and have determined that § 1441(b)(2) is unambiguous. See, e.g., U.S. Bank, N.A. v. Fidelity Nat'l Title Grp., Inc., 2021 WL 5566538, at *4 (D. Nev. Nov. 29, 2021); Doe v. Daversa Partners, 2021 WL 736734, at *5 (D.D.C. Feb. 25, 2021) (rejecting Judge Woodlock's reasoning as “strained”). 7 1 statute’s purpose and creates an absurd result. The absurd result of snap removal is that the 2 removal statute would be granting jurisdiction over a set of cases that previously had no 3 jurisdictional basis to be heard by federal courts: cases lacking original jurisdiction or diversity 4 jurisdiction between parties (i.e., cases like the one at issue presently, where Plaintiff pleads 5 only state law claims and sues non-diverse Defendants). The difference between the availability 6 of jurisdiction premised on snap removal and the lack of such jurisdiction could come down to 7 slivers of time – hours, minutes, even seconds – between the Plaintiff’s filing of the Complaint 8 and Defendant’s removal to federal court prior to service. For example, it is an absurdity that 9 this Court should have jurisdiction over a case wherein proper service takes N hours following 10 the filing of the complaint and the Defendant removes to federal court within N - 1 hours, but 11 not have jurisdiction if the Defendant removes to federal court within N + 1 hours. 12 When the plain meaning of a statute leads to “absurd or futile results,” courts should 13 look beyond the words to the purpose of the act. United States v. Am. Trucking Ass’ns, 310 U.S. 534, 14 543-44 (1940). 15 Even in the alternative, if the result is not thought to be so absurd as to warrant this 16 construction of the statute, snap removal still should not be permitted. “Even when the plain 17 meaning [does] not produce absurd results but merely an unreasonable one ‘plainly at variance 18 with the policy of the legislation as a whole,’” courts should follow that purpose, “rather than 19 the literal words.” Id. 20 Assuming arguendo that the plain language of 28 U.S.C. § 1441(b)(2) permits snap 21 removal in certain cases, the purpose of the forum defendant rule is best fulfilled by rejecting 22 snap removals and remanding such cases back to state court. The purpose of the removal statute 23 has been analyzed at length by other courts facing this same issue. See, e.g., Gentile, 934 F. Supp. 2d 24 at 319-21 (describing the “history and purpose of removal” as well as the “properly joined and 8 1 served” language). “The removal power, and by extension the forum defendant rule, is founded 2 on the basic premise behind diversity jurisdiction itself, [which] was designed to protect non3 forum litigants from possible state court bias in favor of forum-state litigants.” Id. at 319. Forum 4 defendants do not need protection from bias of the forum state, so § 1441(b)(2) protects the 5 plaintiff’s choice of a state court forum where a forum defendant is a proper party to the case. Id. 6 The goal of the “properly joined and served” language was to “thwart gamesmanship by plaintiffs 7 who joined forum defendants with no intent of ever serving them.” Deutsche Bank, 2020 WL 8 7360680, at *3. 9 Instead of thwarting gamesmanship, however, the properly joined and served provision 10 seems to have not only created a loophole, but also encourages exploitation of that loophole. “To 11 adopt a literal interpretation of the joined and served provision would promote gamesmanship 12 by defendants through allowing removal before a plaintiff has a meaningful chance to serve any 13 defendant.” Black v. Monster Beverage Corp., 2016 WL 81474, at *3 (C.D. Cal. Jan. 7, 2016) (internal 14 quotation omitted). Viewing the words “joined and served” in light of the statute’s goal to 15 permit only out-of-state defendants to litigate in federal courts, a more sensible reading “is to 16 prevent plaintiffs from improperly joining forum defendants that they do not actually intend to 17 pursue in order to prevent removal.” Standing v. Watson Pharm., Inc., 2009 WL 842211, at *3 (C.D. 18 Cal. Mar. 26, 2009). But where a forum defendant is not fraudulently joined, following the plain 19 meaning of the statute both undermines the general purpose of the forum defendant rule (i.e., to 20 keep certain cases in state court) and inappropriately prevents plaintiffs from litigating in the 21 forum of their choice. Id. at *4; see also Deutsche Bank, 2020 WL 7360680, at *2-4 (“The purposes 22 underlying § 1441(b)(2) are better served by disallowing removal before any defendant is 23 served.”). 24 9 1 Snap removal serves to allow gamesmanship by defendants who “are sophisticated and 2 have sufficient resources (or suspicion of impending litigation) to monitor court filings and 3 immediately remove a case before a forum defendant can be served.” 3 Deutsche Bank, 2020 WL 4 7360680, at *4. Ultimately, the purposes underlying § 1441(b)(2) are better served by 5 disallowing removal before any defendant is served. See, e.g., Carrington Mortgage Servs., LLC v. Ticor 6 Title of Nevada, Inc., 2020 WL 3892786, at *2-3 (D. Nev. July 10, 2020) (Mahan, J.) (granting a 7 motion to remand in a snap removal case and adopting the policy argument that Judge 8 Woodlock espoused in Gentile). The plaintiff can preserve its ability to remain in state court by 9 serving the forum defendant first and without delay. The non-forum defendant may still argue 10 that the forum defendant is a sham who should be regarded for purposes of removal. Id.; see also 11 Gentile, 934 F. Supp. 2d at 322-23. And this interpretation accords with the Supreme Court’s 12 mandate on strictly construing the removal statute and the jurisdiction of federal courts more 13 generally. 14 Contrary to the arguments advanced by Fidelity, and discussed further herein, there is no 15 basis for diversity jurisdiction because Fidelity Nevada was properly joined to this action as a 16 forum defendant. There is no federal question jurisdiction because BANA’s claims are properly 17 alleged under state law. There is also no basis for removal jurisdiction because allowing “snap 18 removals” would undermine the purpose of the removal statute, leading to absurd and 19 unintended results. Finding no bases for jurisdiction, this Court must grant Plaintiff’s motion to 20 remand the matter to state court. 21 iv. 22 Both Fidelity National and Commonwealth (hereinafter referred to collectively as “the Fidelity Nevada was Properly Joined and is Not a Sham Defendant 23 defendants”) argue that Fidelity Nevada is “fraudulently” joined because it did not underwrite 24 3 While only 11 years have elapsed since the most recent amendment to 28 U.S.C. § 1441(b)(2), advancements in technology and e-monitoring of case filings have improved significantly and exponentially. Such innovations further contribute to gamesmanship and an ability to thwart the purpose of the removal statute. 10 1 the policies or handle the title insurance claims. See ECF No. 1 at 3, ¶4. I disagree. Fidelity 2 Nevada, the forum defendant in this litigation, was properly joined by BANA because BANA’s 3 claims against Fidelity Nevada satisfy both prongs of the rule permitting joinder of parties. Rule 4 20(a)(2) states “[p]ersons…may be joined in one action as defendants if: (A) any right to relief is 5 asserted against them jointly, severally, or in the alternative with respect to or arising out of the 6 same transaction, occurrence, or series of transactions or occurrences; and (B) any question of 7 law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A-B). 4 8 “Permissive joinder is to be liberally construed to promote the expeditious determination of 9 disputes, and to prevent multiple lawsuits.” Cuprite Mine Partners LLC v. Anderson, 809 F.3d 548 10 (9th Cir. 2015) (citing League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th 11 Cir. 1977). “[T]he impulse is toward entertaining the broadest possible scope of action 12 consistent with fairness to the parties; joinder of claims, parties and remedies is strongly 13 encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). 14 BANA can meet the first prong of the rule, regarding the “same transaction, occurrence, 15 or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A). That test “refers to 16 similarity in the factual background of a claim.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 17 1997). BANA’s claims against Fidelity Nevada indeed arise out of the same series of transactions 18 or occurrences as its claims against Fidelity National and the other underwriter defendants. See 19 generally Complaint, ECF No. 1, Ex. 1. BANA alleges that “a connected ‘series of transactions and 20 occurrence[s]’ directed from Fidelity [National] at the top, through its wholly owned 21 underwriters, down to Fidelity Nevada, gave rise to BANA’s damages.” ECF No. 32 at 9-10. 22 Essentially, BANA alleges that it “obtained loans insured by policies underwritten by Fidelity’s 23 subsidiaries, issued by those [] wholly owned subsidiaries on standardized forms, [] all denied 24 by Fidelity [National] based on global positions [Fidelity National] adopted that were in direct As the instant action was initially filed in state court, BANA joined the defendants pursuant to Nev. R. Civ. P. 20, Nevada’s analogue to Fed. R. Civ. P. 20. The state and federal joinder rules are nearly identical in language and equivalent in substance. 4 11 1 contrast to the representations made by Fidelity and the entities it controlled.” Id. at 11. BANA 2 further notes that anticipated discovery will largely focus on the same types of public 3 representations regarding insurance coverage by defendants, the descriptions of such coverage 4 in Fidelity’s manuals, and Fidelity’s claims handling procedures for claims arising from Nevada 5 Homeowner Association foreclosures. Id. at 11-12. In total, the evidentiary overlap in the facts 6 giving rise to each of BANA’s causes of action against Defendants, including both the forum and 7 non-forum defendants, establishes the first prerequisite to permissive joinder. 8 BANA can also meet the second prong of Fed. R. Civ. P. 20, regarding common questions 9 of law or fact. It requires only the existence of “a single question of law or fact” in common to 10 permit joinder. Schreckengost v. Nevada ex rel. Nevada Dep’t of Corrections, 2020 WL 3050708, at *4 (D. 11 Nev. June 8, 2020). BANA alleges several common questions of fact pertaining to both Fidelity 12 Nevada and the non-forum defendants, including, inter alia, whether specific insurance forms 13 provided coverage for losses caused by an HOA’s foreclosure sale, whether Fidelity instructed its 14 underwriters and local agents to represent that those forms provided such coverage, and 15 whether Fidelity adopted coverage positions at odds with its manuals to wrongfully deny all the 16 insurance claims. ECF No. 32 at 13. Furthermore, BANA’s claims of tortious bad faith, breaches 17 of the covenant of good faith and fair dealing, and of deceptive trade practices apply to all 18 defendants and turn on specific factual inquiries that can be resolved efficiently during the same 19 adjudication. The commonality posed by the specific factual and legal inquiries related to 20 BANA’s causes of action establishes the second prerequisite to permissive joinder. 21 Because BANA can meet both prongs of the permissive joinder test described in Fed. R. 22 Civ. P. 20(a)(2) with respect to Fidelity Nevada, its causes of action against Fidelity Nevada 23 were properly joined to its causes of action against the non-forum defendants. 24 12 1 Defendants’ assertion that removal was proper because “only a handful of the eighteen 2 separate claims [brought by BANA] involve Fidelity Agency” (ECF No. 31 at 12) is unavailing. 3 The percentage of claims against Fidelity Nevada compared to BANA’s other claims is irrelevant, 4 and Defendants cite no authority for the proposition that “only a handful” of claims is 5 insufficient to establish permissive joinder. Cf. Walker v. Bryson, 2012 WL 5186658, at *4 (E.D. Cal. 6 Oct. 16, 2012) (“The common question may be one of fact or of law and need not be the most 7 important or predominant issue in the litigation.”). The allegations underlying BANA’s claims 8 against the underwriter defendants and Fidelity Nevada, the similarity of factual and legal issues 9 that need to be resolved to adjudicate those claims, and the expediency of resolution in one 10 consolidated lawsuit all marshal in favor of permitting BANA to join its claims against Fidelity 11 Nevada with its claims against the other defendants. Accordingly, I find that Fidelity National 12 was not fraudulently joined. 13 v. 14 Fidelity argues that this Court has federal question jurisdiction “because Freddie Mac is Freddie Mac is not a Real Party in Interest to this Lawsuit 15 the real party in interest” with respect to one of the insurance policies, claiming that Freddie 16 Mac owned one of the loans at issue in the underlying litigation, while BANA simply serviced 17 the loan. ECF No. 31 at 17-19 (citing 12 U.S.C. § 1452(f) (granting district courts original 18 jurisdiction over actions involving the Federal Home Loan Mortgage Corporation, or as it is 19 colloquially known, “Freddie Mac”)). Defendants fail to cite authority in support of its 20 proposition. 21 Freddie Mac is not a party to the litigation and cannot be used as a looming specter 22 which establishes federal jurisdiction. The language of the jurisdictional statute, to which 23 Defendants cite, states that “all civil actions to which the Corporation is a party shall be 24 deemed to arise under the laws of the United States….” 12 U.S.C. § 1452(f) (emphasis added). 13 1 Freddie Mac is clearly not a stated party to the action and has not moved to intervene at any 2 point. 12 U.S.C. § 1452(f) does not allow for this Court to exercise jurisdiction over a Nevada 3 lawsuit wherein Freddie Mac is not explicitly a party. 4 Defendants acknowledge that Freddie Mac is not the plaintiff in this case but claim that 5 BANA lacks standing to bring its claims on behalf of Freddie Mac as its loan servicer. ECF No. 31 6 at 17-19. Defendants urge the Court to find Freddie Mac a party in interest to the litigation as the 7 party who should have brought the claims that BANA attempts to bring. Id. This reasoning fails 8 for three reasons. 9 First, Defendants fail to cite to any federal rule, including Fed. R. Civ. P. 17 which 10 governs real parties in interest, or Fed. R. Civ. P. 19 which governs mandatory joinder, for their 11 proposition that Freddie Mac must be a plaintiff to this action. Plaintiff’s complaint itself alleges 12 that it is the beneficiary of the Deeds of Trust in question and thus the insured under those 13 policies. ECF No. 1, Ex. 1 at 26. Numerous cases applying Nevada law have found that loan 14 servicers have standing to assert legal claims on behalf of federally backed mortgage companies. 15 See, e.g., Saticoy Bay, LLC v. Flagstar Bank, FSB, 699 F. App’x 658, 659 (9th Cir. 2017) (“[T]he loan 16 servicer, acts as Fannie Mae’s agent, and has standing to assert a claim of federal preemption.”); 17 Nationstar Mortgage, LLC v. SFR Invs. Pool 1, LLC, 396 P.3d 754, 758 (Nev. 2017) (“[W]e hold that the 18 servicer of a loan owned by a regulated entity may argue [a preemption claim], and that neither 19 Freddie Mac nor the FHFA need be joined as a party.”) While preemption claims are not the 20 exact issues in the present case, I find the other courts’ reasoning persuasive and analogous in 21 determining that Freddie Mac need not be joined here. 22 Second, there is no reason this Court should look beyond the pleadings to determine 23 whether Freddie Mac could have brought the claims. Federal question jurisdiction “exists only 24 when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 14 1 Caterpillar, 482 U.S. 392. “The Supreme Court has rejected the theory that federal courts, when 2 assessing their jurisdiction, should look beyond the pleadings to discover unnamed real parties 3 in interest.” PNC Bank, N.A. v. Spencer, 763 F.3d 650, 654 (7th Cir. 2014) (citing Lincoln Prop. Co. v. 4 Roche, 546 U.S. 91, 92-93 (2011)). Freddie Mac is absent from BANA’s complaint and therefore 5 there is no federal question present on the face of the complaint. See generally ECF No. 1, Ex. 1. 6 Finally, Defendants’ argument that BANA lacks standing may be asserted upon remand. 7 Having no jurisdiction over the present controversy, this Court is powerless to determine 8 BANA’s standing to bring this lawsuit in state court. 9 10 vi. BANA is not Entitled to Recover its Fees and Costs Plaintiff moves for an award of its fees and costs incurred because of Defendants’ 11 removal. ECF No. 7 at 15-16. Due to the unresolved nature of the questions of law at issue in this 12 case, I find that removal was neither in bad faith nor “objectively unreasonable.” See Patel v. Del 13 Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (“[A]bsent unusual circumstances, attorney’s fees 14 should not be awarded when the removing party has an objectively reasonable basis for 15 removal.”); Deutsche Bank, 2020 WL 7360680, at *4 (D. Nev. Dec. 14, 2020) (“While I find that 16 removal was improper, the courts are in disarray on this issue, so removal was not ‘objectively 17 unreasonable.’”). Plaintiffs have not plead or demonstrated unusual circumstances that would 18 warrant fees and costs in the present matter. Therefore, I deny BANA’s motion for fees and costs. 19 Conclusion 20 For the reasons above, IT IS ORDERED that Plaintiff’s Motion to Remand (ECF No. 7) is 21 GRANTED. This case is to be remanded to the state court from which it was removed for all 22 further proceedings. 23 IT IS FURTHER ORDERED that Plaintiff’s Motion for Attorney’s Fees and Costs (ECF 24 No. 8) is DENIED. 15 1 IT IS FURTHER ORDERED that Defendants Commonwealth Land Title Insurance 2 Company’s and Fidelity National Title Insurance Company’s Motions to Dismiss (ECF No. 26, 3 34) are DENIED as moot. 4 IT IS FURTHER ORDERED that Defendant Fidelity National Title Group, Inc.’s 5 Motions to Dismiss (ECF Nos. 29, 39) are DENIED as moot. 6 IT IS FURTHER ORDERED that Defendants Chicago Title of Nevada, Inc.’s and Fidelity 7 National Title Agency of Nevada, Inc.’s Motions to Dismiss (ECF Nos. 30, 37) are DENIED as 8 moot. 9 10 The Clerk of the Court is instructed to close this case. IT IS SO ORDERED. 11 12 DATED this July 18, 2022. 13 _________________________________ Cristina D. Silva United States District Judge 14 15 16 17 18 19 20 21 22 23 24 16
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