Deborah A. Neenan
CitiMortgage, Inc. Opinion No. 2013 DNH 163
JOSEPH A. DiCLERICO, Jr., District Judge.
After her home was sold in a foreclosure sale on August 27, 2013, Deborah A. Neenan filed an emergency ex parte petition for a temporary restraining order and a verified complaint against CitiMortgage, Inc. in state court. On September 26, 2013, the state court granted, in part, the petition for a temporary restraining order to maintain the status quo pending a preliminary hearing to be held within ten days. CitiMortgage removed the case to this court on October 1, 2013.
CitiMortgage now moves to dismiss Neenan's claims. Neenan objects to the motion to dismiss and also moves to remand the case to state court for lack of subject matter jurisdiction. CitiMortgage has filed a reply to Neenan's objection and objects to Neenan's motion to remand.
I. Motion to Remand
Neenan contends that this court lacks subject matter jurisdiction under 28 U.S.C. § 1332 because her claims do not meet the amount in controversy requirement. Subject matter jurisdiction under § 1332 requires complete diversity between the parties and an amount in controversy that exceeds $75, 000. § 1332(a). When subject matter jurisdiction is challenged following removal from state court, the removing party bears the burden to show that federal jurisdiction exists. Ortiz-Bonilla v. Fed'n de Ajedrez de P.R., Inc., ___ F.3d ___, 2013 WL 4457427, at *4 (1st Cir. Aug. 21, 2013). Therefore, while diversity of citizenship is not challenged here, CitiMortgage must show that the amount in controversy exceeds $75, 000.
In support of the notice of removal, CitiMortgage asserted that the jurisdictional amount was met because the fair market value of the foreclosed property exceeded $75, 000. Neenan contends that her claims do not challenge the validity of the foreclosure but instead seek damages for CitiMortgage's conduct after the foreclosure. For that reason, she contends, the fair market value of the property is not pertinent to the amount in controversy.
Neenan alleges claims in her complaint as follows: Count I, Willful, Criminal Trespass; Count II, Theft of Utility Services (RSA 539:7); Count III, Unfair & Deceptive Trade Practices (RSA Chapter 358-A); Count IV, Wrongful Eviction: Violation of RSA 540-A:2 and 3; Count V, Conversion; Count VI, Intentional Infliction of Emotional Distress; and Count VII, Negligent Infliction of Emotional Distress. She seeks injunctive relief to prohibit CitiMortgage from "continuing to deprive the Plaintiff of lawful possession of her real property, " "from entering onto or into the Premises, " and to enjoin CitiMortgage from recording the foreclosure deed. Neenan also asks for "immediate and interim damages" of $25, 000 and reserves the right to seek additional damages.
In support of diversity jurisdiction, CitiMortgage notes that in addition to damages, Neenan seeks injunctive relief that would deprive CitiMortgage of ownership of the property. For that reason, CitiMortgage contends, the value of the property is part of the measure of the amount in controversy. Neenan focuses exclusively on the damages she seeks.
"Courts have repeatedly held that the value of the matter in controversy is measured not by the monetary judgment which the plaintiff may recover but by the judgment's pecuniary consequences to those involved in the litigation.'" Barbosa v. Wells Fargo Bank, N.A., 2013 WL 4056180, at *4 (D. Mass. Aug. 13, 2013) (quoting Richard C. Young & Co., Ltd. v. Leventhal , 389 F.3d 1, 3 (1st Cir. 2004) and citing 14A Charles Alan Wright, et al., Federal Practice & Procedure § 3702.5 (4th ed. 2011)). When the plaintiffs challenge the right or title to the property following a foreclosure sale, the appropriate measure of the amount in controversy includes the value of the property in question. Id .; see also Bedard v. MERS, Inc., 2011 WL 1792738, at *3 (D.N.H. May 11, 2011).
As is noted above, CitiMortgage bears the burden of showing that the amount in controversy, including the value of the property, exceeds $75, 000. Barbosa, 2013 WL 4056180, at *4. CitiMortgage has demonstrated that it bought the property at issue in this case at the foreclosure sale on August 27, 2013, for $220, 848.68. Therefore, the amount in controversy exceeds $75, 000. Federal subject matter jurisdiction exists under § 1332. The motion to remand is denied.
II. Motion to Dismiss
CitiMortgage argues that Neenan's claims are barred because she did not seek to enjoin the foreclosure before it occurred. See RSA 479:25, II. CitiMortgage also argues that even if Neenan's claims are not barred by the requirements of RSA 479:25, II, they should be barred because she unreasonably delayed filing this action. Further, CitiMortgage contends that the claims fail on the merits as a matter of law.
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss on the ground that the plaintiff's complaint fails to state a claim on which relief can be granted. In assessing a complaint for purposes of a motion to dismiss, the court "separate[s] the factual allegations from the conclusory statements in order to analyze whether the former, if taken as true, set forth a plausible, not merely conceivable, case for relief." Juarez v. Select Portfolio Servicing, Inc. , 708 F.3d 269, 276 (1st Cir. 2013) (internal quotation marks omitted). "If the facts alleged in [the complaint] allow the court to draw ...