Cavadi v. Bank of America
This text of 2007 DNH 133 (Cavadi v. Bank of America) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Cavadi v . Bank of America CV-07-224-PB 10/30/07
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jules R. Cavadi
v. Case N o . 07-cv-224-PB Opinion N o . 2007 DNH 133 Bank of America, N.A.
MEMORANDUM AND ORDER
Jules Cavadi filed the instant case in state court. Bank of
America, N.A. (“Bank of America”) then filed a notice of removal.
Cavadi now argues that the case should be remanded to state court
because there is no diversity of citizenship. He also argues
that Bank of America waived its right to remove by involving
itself in a factually related, but separate, action in state
court. For the reasons discussed below, Cavadi’s motion to
remand is denied.
I. BACKGROUND
Cavadi is a citizen of Massachusetts. Bank of America is a
national bank association whose main office is located in
Charlotte, North Carolina. Bank of America also has branch offices in numerous other states, including Cavadi’s home state
of Massachusetts.
In Rockingham County Superior Court, Cavadi v . Barnes,
Docket N o . 07-E-114 (hereinafter “the collection action”), Cavadi
sought unsuccessfully to collect a judgment against Stephen C .
Barnes. The court ordered Barnes to surrender the contents of a
safe deposit box that Barnes maintained at the Exeter, New
Hampshire, branch office of Bank of America. Instead of
surrendering the box, however, Barnes visited the branch office
and absconded with the box’s contents. Based on these events,
Cavadi requested that the superior court enter a criminal
complaint for contempt against Bank of America. The bank
successfully opposed this motion.
Having failed to obtain any relief in the collection action,
Cavadi filed a complaint against Bank of America in Rockingham
County Superior Court, Cavadi v . Bank of America, N.A., Docket
N o . 07-C-549 (hereinafter “the new action”). In the new action,
Cavadi sought to recover damages from Bank of America under a
variety of state law theories based on the bank’s alleged failure
or refusal to prevent Barnes from taking away the box’s contents.
Bank of America accepted the writ of summons on June 2 8 , 2007,
-2- and timely filed a notice of removal on July 2 4 , 2007.
After the new action had been removed to federal court,
Cavadi moved to remand. The motion to remand is now before m e .
Cavadi asserts two alternative theories for defeating removal:
first, that there is no diversity of citizenship; and second,
that Bank of America waived its right to remove the new action
when, in the collection action, it defended itself against
Cavadi’s motion for a criminal contempt complaint.
II. ANALYSIS
A. Diversity of Citizenship
Bank of America is a national banking association.
Accordingly, this court’s subject matter jurisdiction is governed
by 28 U.S.C. § 1348, which states in relevant part: “All national
banking associations shall, for the purposes of all other actions
by or against them, be deemed citizens of the States in which
they are respectively located.” 28 U.S.C. § 1348.
Cavadi principally relies on Wachovia Bank, N.A. v . Schmidt,
388 F.3d 414 (4th Cir. 2004), to argue that I should construe
“located” to include anywhere that Bank of America operates a
branch office, which would destroy the diversity between Cavadi
-3- and the bank. As Bank of America points out in its objection,
however, the U.S. Supreme Court reversed the Fourth Circuit’s
decision on appeal. See Wachovia Bank, N.A. v . Schmidt, 546 U.S.
303, 319 (2006). The Supreme Court construed § 1348 to mean that
“a national bank, for § 1348 purposes, is a citizen of the State
in which its main office, as set forth in its articles of
association, is located.” Id. at 307.
Bank of America’s main office is located in Charlotte, North
Carolina, making Bank of America a citizen of North Carolina for
§ 1348 purposes. See id. Because Cavadi is a citizen of
Massachusetts, the parties are therefore diverse and Cavadi’s
first argument for remand fails.
B. Waiver of Removal
Cavadi argues in the alternative that, by involving itself
in the collection action, Bank of America waived its statutory
right to removal of the new action. Moore’s Federal Practice
states:
A defendant may waive the right to remove a state court action to federal court by taking actions in state court, after it is apparent that the case is removable, that manifest the defendant’s intent to (1) have the case adjudicated in state court and (2) abandon the right to a federal forum. However, it must be unequivocally apparent that the case is removable, and the intent to waive the right to remove to federal
-4- court and submit to state court jurisdiction must be clear and unequivocal, and the defendant’s actions must be inconsistent with the right to remove.
16 James Wm. Moore et a l . , Moore’s Federal Practice § 107.18[3]
[a] (Matthew Bender 3d ed. 2007).
I assume, arguendo, that Bank of America chose to submit to
the state court’s jurisdiction in the collection action. That
does not, however, automatically lead to the conclusion that Bank
of America also chose to submit to the state court’s jurisdiction
in the new action.
Cavadi’s motion for a contempt citation in the collection
action and Cavadi’s claims in the new action both stem from the
same transaction (namely, the bank’s alleged failure or refusal
to prevent Barnes from removing the contents of the safe deposit
box). But that fact, standing alone, does not justify treating
the two cases as one. See McKnight v . Ill. Cent. R.R., 967 F.
Supp. 1 8 2 , 186 (E.D. L a . 1997) (where defendant litigated prior,
transactionally related cases in state court, defendant’s actions
in those prior cases did not waive its right to remove a
subsequent class action suit even though it arose from the same
transaction); Baker v . Firestone Tire & Rubber Co., 537 F. Supp.
244, 247 (S.D. Fla. 1982), aff’d, 793 F.2d 1196 (11th Cir. 1986)
-5- (where a new lawsuit raised claims identical to those raised in a
prior state court case between the same plaintiff and same
defendant, defendant’s choice to litigate the prior case in state
court did not affect its right to remove the new case).
Additionally, the new action was neither extant nor removable
when Bank of America was defending itself in the collection
action.
In these circumstances, I cannot conclude that Bank of
America’s actions in the collection action showed an intent to
abandon its right to a federal forum in the new action.
Accordingly, Cavadi’s waiver argument fails.
III. CONCLUSION
For the foregoing reasons, Cavadi’s motion to remand (Doc.
N o . 9 ) is denied.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
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