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 principals1of 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withdrawn and/or having been judicially expelled therefrom in 2012,” Def.’s Notice of Removal 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. 
2

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, 
3

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.2See 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 
4

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.