                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

NICOLE NEWMAN, et al.,                           :
                                                 :
       Plaintiffs,                               :      Civil Action No.:     13-1969 (RC)
                                                 :
       v.                                        :      Re Document No.:      2
                                                 :
C. ALLISON DEFOE REESE,                          :
                                                 :
       Defendant.                                :

                           MEMORANDUM OPINION & ORDER

                         GRANTING PLAINTIFF’S MOTION TO REMAND

                     I. INTRODUCTION AND FACTUAL BACKGROUND

       Plaintiff Nicole Newman (“Newman”) and Defendant C. Allison DeFoe Reese (“Reese”)

are principals1 of ANR Construction Management, LLC (“ANR”), a limited liability corporation

operating in the District of Columbia. See Compl., Nov. 22, 2013, ECF No. 1-1, at 2. On

November 22, 2013, ANR and Newman (collectively, “Plaintiffs”) filed suit against Reese in the

Superior Court of the District of Columbia alleging the following claims: breach of fiduciary

duty, fraud, conversion, replevin, and embezzlement. See id. at 1.

       On December 12, 2013, Reese removed the case to this Court. See Def.’s Notice of

Removal (“Def.’s Notice”), Dec. 12, 2014, ECF No. 1. In her Notice, Reese identified diversity

jurisdiction pursuant to 28 U.S.C. § 1332 as grounds for removal, asserting that Newman and




       1
         Although Reese alleges that Newman is no longer a principal of ANR “having
withdrawn and/or having been judicially expelled therefrom in 2012,” Def.’s Notice of Removal
(“Def.’s Notice”), Dec. 12, 2013, ECF No. 1, at 1, this issue is irrelevant for the purposes of
determining whether removal was proper under 28 U.S.C. § 1441(b) and thus is not addressed by
the Court.
Reese are citizens of different states and the amount in controversy exceeds $75,000. See id. at 2;

see also Civil Cover Sheet, Dec. 12, 2013, ECF No. 1-2, at 1.

        On December 18, 2013, Plaintiffs moved to remand on the ground that this Court lacks

subject matter jurisdiction. See Pl.’s Mot. to Remand (“Pl.’s Motion”), Dec. 18. 2013, ECF No.

2, at 3. Specifically, Plaintiffs argue that there is not complete diversity of the parties, as both

Reese and ANR are citizens of the District of Columbia. See id. at 4. Moreover, Plaintiffs argue

that even if there were complete diversity between the parties, removal would still be improper

pursuant to 28 U.S.C. § 1441(b) as Reese is a resident of Washington, D.C. and “removal is not

available to a defendant residing in the district where the cause of action accrued.” Id.

        Upon consideration of Newman’s motion and Reese’s opposition to that motion, as well

as additional relevant filings in this matter, the Court finds that removal was improper and grants

Newman’s motion for the reasons discussed below.


                                           II. ANALYSIS

        “A civil action filed in state court may only be removed to a United States district court if

the case could originally have been brought in federal court.” Nat’l Consumers League v.

Flowers Bakeries, LLC., No. 13–1725, 2014 WL 1372642, at *2, (D.D.C. Apr. 8, 2014) (citing

28 U.S.C. § 1441(a)). “Courts in this circuit have construed removal jurisdiction strictly,

favoring remand where the propriety of removal is unclear.” Ballard v. Dist. of Columbia, 813 F.

Supp. 2d 34, 38 (D.D.C. 2011). Federal district courts have original jurisdiction if the amount in

controversy exceeds $75,000, exclusive of interest and costs, and the action is between citizens

of different states pursuant to 28 U.S.C. § 1332. Diversity actions are removable only if “none of

the parties in interest properly joined and served as defendants is a citizen of the State in which

such action is brought.” 28 U.S.C. § 1441(b). As the party opposing the motion to remand,


                                                   2
Newman “bears the burden of establishing that subject matter jurisdiction exists in federal

court.” Nat’l Consumers League, 2014 WL 1372642, at *2 (citing RWN Dev. Grp., LLC v.

Travelers Indem. Co., 540 F. Supp. 2d 83, 86 (D.D.C. 2008)).

       Newman argues that removal was improper because Reese is a citizen of Washington,

D.C. and the forum-defendant rule prohibits the removal of diversity actions when a defendant is

sued in her home state. See Pl.’s Mot., ECF No. 2, at 3. Removal in diversity jurisdiction actions

is proper only if “none of the … defendants is a citizen of the State in which such action is

brought.” 28 U.S.C. § 1441(b). This principle is uniformly accepted: a defendant sued in her

home state cannot remove if federal jurisdiction rests on diversity of citizenship grounds. See

Wright & Miller, 14B Fed. Prac. & Proc. Juris. § 3723 (4th ed.) (“Section 1441(b) explicitly

provides, and the cases uniformly hold, that diversity cases may be removed to federal court only

if none of the parties in interest properly joined and served as a defendant is a citizen of the state

in which the action was brought.”); see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)

(“[D]efendants may remove the action to federal court … provided that no defendant is a citizen

of the State in which such action is brought.”) (internal citations omitted).

       Here, Reese removed the action based on diversity jurisdiction.2 See Def.’s Notice, ECF

No. 1, at 2. Reese also admits she is a “citizen of the District of Columbia,” and it is undisputed



       2
          Reese later asserts that removal was proper because the Court also has federal question
jurisdiction over Newman’s embezzlement claim. See Def.’s Mem. in Opp’n, ECF No. 5, at 1.
The Court first notes that that was not a basis for the removal. See Def.’s Notice, ECF No. 1, at
2. Regardless, Reese supports this argument by alleging that, “[t]he District of Columbia
criminal code has no specific reference or provision regarding embezzlement . . . [but] [t]he
United States Code . . . specifically references embezzlement.” Id. at 4. However, embezzlement
is addressed in D.C. Code § 22-3211(a)-(b) (“A person commits the offense of theft if that
person wrongfully obtains or uses the property of another” … “[t]he term “wrongfully obtains or
uses” includes conduct previously known as larceny, larceny by trick, larceny by trust,
embezzlement, and false pretenses.”). Thus, embezzlement is a D.C. (i.e., state law) cause of
action and does not present a federal question. Moreover, a criminal claim of embezzlement can


                                                  3
that the Plaintiffs filed suit in the Superior Court of the District of Columbia. See id. at 1. The

Court therefore concludes that removal was improper pursuant to 28 U.S.C. § 1441(b) and the

issue of complete diversity of the parties is irrelevant. See Brooks v. Dist. of Columbia, 819 F.

Supp. 67, 68 n.1 (holding the Court need not address diversity of citizenship where removal was

improper under 28 U.S.C. § 1441(b)). Reese was sued in her home state and as such cannot

remove the case to federal court.


                                        III. CONCLUSION

       For the foregoing reasons, it is hereby ORDERED that plaintiff’s motion to remand is

granted and it is further ORDERED that the above-captioned matter be remanded to the

Superior Court for the District of Columbia.

       SO ORDERED


Dated: 6/3/2014                                                      RUDOLPH CONTRERAS
                                                                     United States District Judge




only be brought by the U.S. Attorney’s Office – not by the Plaintiffs. This is solely a civil action
and if there is no civil claim for embezzlement in Superior Court, that may be a basis to argue
failure to state a claim, but has nothing whatsoever to do with this Court’s jurisdiction. As such,
there is no federal question jurisdiction in this case.


                                                  4
