Gogert v. Regional Trustee Services, Inc., et al, No. 2:2011cv01578 - Document 24 (W.D. Wash. 2012)
Court Description: ORDER denying 10 Plaintiff's Motion to Remand; granting 20 Deft Wells Fargo Bank's Motion to Quash. RE-Noting Date 2/24/2012, re 13 MOTION to Dismiss and/or For Summary Judgment by Judge James L. Robart.(MD)
Download PDF
<![CDATA[
Gogert v. Regional Trustee Services, Inc., et al Doc. 24 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 CASE NO. C11-1578JLR THOMAS GOGERT, 11 ORDER GRANTING DEFENDANT’S MOTION TO QUASH AND DENYING PLAINTFF’S MOTION TO REMAND Plaintiff, 12 v. 13 14 REGIONAL TRUSTEE SERVICES, INC., et al., 15 Defendants. 16 17 18 19 20 21 I. INTRODUCTION This matter comes before the court on Defendant Wells Fargo Bank, N.A.’s (“Wells Fargo”) motion to quash Plaintiff Thomas Gogert’s notice of voluntary dismissal (Dkt. # 20) and Mr. Gogert’s motion to remand (Dkt. # 10). Having considered the parties’ briefing, the balance of the record, and the relevant law, and neither party having requested oral argument, the court GRANTS Wells Fargo’s motion to quash and 22 ORDER - 1 Dockets.Justia.com 1 DENIES Mr. Gogert’s motion to remand. 1 2 3 II. BACKGROUND The underlying dispute in this action involves a loan provided to Mr. Gogert by 4 World Savings Bank F.S.B. (“World Savings”), a named defendant. On December 17, 5 2007, Mr. Gogert executed a promissory note to obtain a loan from World Savings in the 6 amount of $375,000.00. (Grissendanner Decl. (Dkt. # 2) Ex. A.) The loan was used to 7 purchase a multi-unit apartment complex in Shoreline, Washington. (Id.) On the same 8 date, Mr. Gogert also executed a deed of trust to secure his loan obligations. 9 (Grissendanner Decl. Ex. B.) The trustee listed on the deed of trust dated December 17, 10 2007 was First American Title Insurance Company, a California Corporation. (Id.) 11 However, Regional Trustee Services Corporation (“RTSC”), a Washington corporation, 12 was appointed successor trustee pursuant to an appointment of successor of trustee filed 13 January 11, 2011. (RTSC Joinder to Mot. to Dismiss (Dkt. # 18) Ex. A.) 14 Shortly after Mr. Gogert obtained the loan from World Savings, the bank changed 15 its name to Wachovia Mortgage and subsequently merged into Wells Fargo. 16 (Grissendanner Decl. ¶ 4.) Wachovia Mortgage continues to operate as a division of 17 Wells Fargo known as “Wachovia Mortgage.” (Id.) 18 Following the execution of the loan agreement and the deed of trust, Mr. Gogert 19 defaulted on his loan. (Resp. to Mot. to Remand (Dkt. # 11) at 2.) As a result, the trustee 20 21 1 Wells Fargo’s motion to dismiss and/or for summary judgment (Dkt. # 13) is also 22 pending before the court and will be addressed in a subsequent order. ORDER - 2 1 filed a notice of trustee’s sale on April 27, 2011. (Id.) At that time, Mr. Gogert had only 2 paid $23,578.02 on the loan. (Id.) 3 Before the scheduled date of the trustee’s sale, Mr. Gogert filed a complaint in 4 King County Superior Court to quiet title and restrain the trustee’s sale. (Comp. (Dkt. # 5 1-1).) Well Fargo then removed the action to this court on diversity grounds. (Not. of 6 Removal (Dkt. # 1).) Mr. Gogert responded with a motion to remand. (Mot. to Remand 7 (Dkt. # 10).) Wells Fargo subsequently filed a motion to dismiss and/or for summary 8 judgment. (Mot. to Dismiss (Dkt. # 13).) Mr. Gogert did not respond to that motion, but 9 instead filed a notice of voluntary dismissal (Not. of Dismissal (Dkt. # 19)), which 10 prompted Wells Fargo’s motion to quash (Mot. to Quash (Dkt. # 20)). Mr. Gogert did 11 not respond to the motion to quash. 12 III. ANALYSIS 13 A. Motion to Quash 14 Under Federal Rule of Civil Procedure 41(a)(1), a party may not voluntarily 15 dismiss an action, absent a court order, after a defendant has filed a motion for summary 16 judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). Rule 41(a)(1) states in pertinent part, “Subject 17 to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may 18 dismiss an action without a court order by filing: a notice of dismissal before the 19 opposing party serves either an answer or a motion for summary judgment.” 2 Fed. R. 20 Civ. P. 41(a)(1)(A)(i). As noted above, Wells Fargo filed a motion for summary 21 22 2 Rules 23(e), 23.1(c), 23.2. and 66 are not applicable to the instant dispute. ORDER - 3 1 judgment before Mr. Gogert filed its notice of voluntary dismissal. Accordingly, Mr. 2 Gogert’s notice of voluntary dismissal does not comply with Rule 41(a)(1)(A)(i), and is 3 therefore improper. Because Wells Fargo has filed a motion for summary judgment, Mr. 4 Gogert must move the court for an order dismissing his case pursuant to Rule 41(a)(2). 3 5 He has not done so, therefore this action remains before the court. 4 6 Mr. Gogert argues, however, that Rule 41(a)(1)(A)(i) does not apply because 7 Wells Fargo was never properly served and therefore is not a valid party in this action. 8 (Not. of Dismissal at 1.) This case presents the uncommon situation of a plaintiff—rather 9 than a defendant—challenging service. The parties have not brought any case law to the 10 court’s attention that addresses whether a defendant may remove a case to federal court 11 prior to formal service of the summons and complaint, nor has the court found any. 12 Given the absence of case law supporting Mr. Gogert’s position that this court lacks 13 jurisdiction over Wells Fargo despite Wells Fargo’s appearance and participation in this 14 matter, the court declines to find that Mr. Gogert’s notice of voluntary dismissal was 15 effective. 16 The court’s conclusion is buttressed by Federal Rule of Civil Procedure 17 12(h)(1). Pursuant to Rule 12(h)(1), a defendant waives the right to challenge service by 18 19 20 3 “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). 4 In its briefing, Wells Fargo asserts that even if Mr. Gogert had requested a court order dismissing the action pursuant to Rule 41(a)(2) such a motion should be denied. Because a 21 motion under Rule 41(a)(2) has not been filed, the court declines to rule on the validity of such a motion. 22 ORDER - 4 1 failing to raise that defense in its first responsive pleading. Schnabel v. Lui, 302 F.3d 2 1023, 1033 (9th Cir. 2002) (“Under Rule 12(h)(1), [the defendant] has waived any 3 defense of lack of personal jurisdiction, insufficiency of process, or insufficiency of 4 service of process, by failing to raise the defense in its first motion under Rule 12(b).”) 5 (citing Fed. R. Civ. P. 12(b), (h)(1)(A)). Here, Wells Fargo did not challenge the validity 6 of service in its combined motion for dismissal and/or summary judgment. (Mot. to 7 Dismiss.) Rather, Wells Fargo filed a waiver of service. (Waiver of Service (Dkt. # 12).) 8 Thus, Wells Fargo has submitted itself to the jurisdiction of this court, and the court 9 grants its motion to quash. 10 B. Motion to Remand 11 Given the court’s ruling on Wells Fargo’s motion to quash, Mr. Gogert’s motion 12 to remand this matter to state court remains pending before the court. Mr. Gogert makes 13 three arguments for why this case should be remanded. First, he asserts that the court 14 does not have jurisdiction pursuant to the prior exclusive jurisdiction doctrine. (Mot. to 15 Remand at 2.) Next, he argues that diversity jurisdiction does not exist because RTSC, a 16 named defendant, is a Washington corporation and not a nominal party. (Reply to Mot. 17 to Remand (Dkt. # 14) at 2.) Finally, he contends that Wells Fargo fraudulently 18 misrepresents its status in the litigation because it was never formally served. 5 (Id. at 1.) 19 20 5 Mr. Gogert also states in his motion to remand that his complaint raises only state law claims. (Mot. to Remand at 2-3). Mr. Gogert, however, does not argue that the lack of federal 21 question jurisdiction necessitates remand. Indeed, such an assertion would not be correct because, as explained below, the court concludes that it has diversity jurisdiction. See 28 U.S.C. 22 § 1332(a)(1) (“[D]istrict courts have original jurisdiction of all civil actions where the matter in ORDER - 5 1 As explained below, the court finds all three arguments unpersuasive and thus denies the 2 motion to remand. 3 1. The Prior Exclusive Jurisdiction Doctrine 4 Contrary to Mr. Gogert’s assertions, the prior exclusive jurisdiction doctrine does 5 not apply to the present case. The doctrine applies to preclude a court’s jurisdiction 6 “where parallel state and federal proceedings seek to ‘determine interests in specific 7 property as against the whole world’ (in rem), or where ‘the parties’ interests in the 8 property . . . serve as the basis of the jurisdiction’ for the parallel proceedings (quasi in 9 rem).” Chapman v. Deutsche Bank Nat’l Trust Co., 651 F.3d 1039, 1044 (9th Cir. 2011) 10 (quoting State Eng’r v. S. Fork Band of Te-Moak Tribe of W. Shoshone Indians, 339 F.3d 11 804, 811 (9th Cir. 2003)). Thus, under the doctrine, which is a mandatory jurisdictional 12 requirement, “when one court is exercising in rem jurisdiction over a res, a second court 13 will not assume in rem jurisdiction over the same res.” Id. at 1043 (citing Marshall v. 14 Marshall, 547 U.S. 293, 311(2006)). Therefore, the doctrine does not apply when a 15 single case is removed from state court to federal court. March v. Pinnacle Mortg. of 16 Nev., No. 3:11-cv-319-RCJ-VPC, 2011 WL 4809198, at *4 (D. Nev. Oct. 7, 2011) 17 (“Here, there is only one proceeding and Defendants have removed that proceeding to 18 this court. As such, the prior exclusive jurisdiction doctrine does not apply. 19 Accordingly, the court denies the motion to remand.”); Karl v. Quality Loan Serv. Corp., 20 No. 3:10-cv-00473-RCJ-VPC, 2011 WL 2792393, at *3 (D. Nev. July 14, 2011) (“The 21 controversy exceeds the sum or value of $75,000 exclusive of interest and costs, and is between 22 . . . citizens of different states.”). ORDER - 6 1 court does not lack jurisdiction under the prior exclusive jurisdiction doctrine simply 2 because the present case originated in state court. Plaintiff fails to distinguish between 3 the situation where a federal action is parallel to another, separate state court action . . . 4 and the situation here, where the sole state court action is removed to federal court.”). 5 As noted above, in the present case, Mr. Gogert brought a single action in state 6 court that was later removed to federal court. Consequently, the prior exclusive 7 jurisdiction doctrine does not apply because there is no separate parallel proceeding. See 8 March, 2011 WL 4809198, at *4; see also Karl, 2011 WL 2792393, at *3. 9 10 2. Diversity Jurisdiction Mr. Gogert’s second asserted ground for remand, that this court lacks diversity 11 jurisdiction, fails because all of the parties with a stake in the case are citizens of different 12 states, and the amount in controversy exceeds $75,000.00. See Fed. R. Civ. P. 1331. 13 Mr. Gogert’s sole argument on this point is that both he and RTSC are citizens of 14 Washington. Wells Fargo maintains that diversity jurisdiction exists because RTSC is 15 merely a nominal party. The court agrees with Wells Fargo that RTSC is a nominal party 16 and that diversity jurisdiction exists. 17 Under 28 U.S.C. § 1332(a)(1) and TOSCO Corp. v. Communities for a Better 18 Environment, 236 F.3d 495, 4999 (9th Cir. 2001), complete diversity among the parties is 19 required when bringing an action in federal court on diversity grounds. However, 20 nominal parties to an action do not destroy diversity, and trustees, such as RTSC, are 21 nominal parties. See Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d 1129 (9th Cir. 22 2000); see also Prasad v. Wells Fargo Bank, N.A., No. C11-894-RSM, 2011 WL ORDER - 7 1 4074300, at *3 (W.D. Wash. Sept. 13, 2011). In Strotek, the Ninth Circuit stated that 2 “defendants who are nominal parties with nothing at stake may be disregarded in 3 determining diversity.” Strotek, 300 F.3d at 1333. Trustees in financial arrangements, 4 such as the one at issue in the current case, are nominal parties, and therefore, they do not 5 destroy diversity. Prasad, 2011 WL 4074300, at *3. 6 In Prasad, the court considered a motion to remand in a case that is nearly 7 identical to the present action. Just as in this matter, the plaintiff in Prasad sued RTSC as 8 the trustee under the deed of trust and Wells Fargo as the beneficiary to quiet title on a 9 piece of real property. Id. at *1. Following removal to federal court, the plaintiff filed a 10 motion to remand based on the lack of diversity jurisdiction, citing RTSC’s incorporation 11 in Washington. Id. The Prasad court rejected the plaintiff’s argument, stating: 12 13 14 In short, in Washington, as in other states, unless a plaintiff has made substantive allegations against the trustee, the trustee under a deed of trust is neutral with respect to the plaintiff and defendant and has no interest in the outcome of a lawsuit such as the one at bar. Under these circumstances, the court must treat the trustee as a nominal defendant. 15 Id. at *3. The Prasad court found that the plaintiff had made no substantive claims 16 against RTSC because the plaintiff had merely alleged that RTSC had “listed plaintiff’s 17 subject property for May 27, 2011 foreclosure, and that it and Wells Fargo lack[ed] any 18 legal power to foreclosure [sic] on plaintiff’s subject property.” Id. (internal quotation 19 marks omitted). Thus, the Prasad court concluded that RTSC was a nominal party and 20 that diversity jurisdiction existed. Id. at *4. 21 Mr. Gogert asserts that RTSC is a not a nominal party because, “[u]nder RCW 22 61.24, the statute governing deed of trust foreclosures, the trustee has certain specific ORDER - 8 1 obligations, including a duty of good faith to the borrower and to perform the steps and 2 requirements dictated by the statute.” (Reply to Mot. to Remand at 2.) Mr. Gogert, 3 however, has made no substantive claims against RTSC. His complaint only alleges that 4 RTSC “is not a valid Successor Trustee under the laws of Washington and is prohibited 5 from acting as such.” (Comp. ¶ 1.5.) Mr. Gogert has made no further allegations of 6 wrongdoing or filed claims for money damages against RTSC. Thus, like the trustee in 7 Prasad, RTSC has no direct stake in the current action and is a nominal party. See 8 Prasad, 2011 WL 4074300, at *3. Consequently, complete diversity exists between the 9 parties and remand is not proper on this ground. 10 3. Wells Fargo as a Valid Party 11 Mr. Gogert’s final argument in support of removal is that Wells Fargo 12 misrepresents its status in the current action because it was never properly served. (Reply 13 Mot. to Remand at 1.) Mr. Gogert further asserts that Wells Fargo’s waiver of service, 14 which was filed following removal to this court, does not make it a valid party in this 15 action. As discussed in the previous section, however, Wells Fargo has submitted itself 16 to the jurisdiction of this court. Consequently, the court denies Mr. Gogert’s motion to 17 remand. 18 19 IV. CONCLUSION For the forgoing reasons, the court GRANTS Wells Fargo’s motion to quash Mr. 20 Gogert’s notice of voluntary dismissal (Dkt. # 20) and DENIES Mr. Gogert’s motion to 21 remand (Dkt. # 10). Further, the court directs the clerk to renote Wells Fargo’s motion to 22 ORDER - 9 1 dismiss and/or for summary judgment (Dkt. # 13) to February 24, 2012. 6 Mr. Gogert 2 may file a responsive brief on or before February 20, 2012, and Wells Fargo may reply 3 on or before February 24, 2012. 4 Dated this 31st day of January, 2012. 5 A 6 7 JAMES L. ROBART United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 6 As stated above, Mr. Gogert filed his notice of voluntary dismissal in lieu of a response to Wells Fargo’s motion to dismiss and/or for summary judgment. In the interest of fully and 21 fairly considering the issues, the court renotes Wells Fargo’s motion to allow Mr. Gogert the opportunity to file a responsive brief. 22 ORDER - 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
