DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•39577 WOODWARD AVENUE•SUITE 300•BLOOMFIELD HILLS, MICHIGAN 48304 

 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GREEN ROAD INVESTMENTS #2, LLC, a 

Michigan limited liability company, 

GREENFIELD LINCOLN INVESTMENTS 

#2, LLC, a Michigan limited liability 

company, and VICTOR PARK 

INVESTMENTS, LLC, a Michigan limited 

liability company, 

Plaintiffs, 

vs. 

CWCAPITAL ASSET MANAGEMENT, 

LLC, a Massachusetts limited liability 

company, GREENWICH CAPITAL 

FINANCIAL PRODUCTS, INC., a Delaware 

corporation, WELLS FARGO BANK, NA, a 

national banking association, WACHOVIA 

BANK, NA, a national banking association, 

Defendants. 

 

Oakland County Case No. 09-102865-CK 

U.S. District Court Case No. 

Hon. 

Magistrate Judge 

Mark S. Demorest (P35912) 

Stephen J. Dunn (P38182) 

DEMOREST LAW FIRM, PLLC 

Attorneys for Plaintiffs 

555 S. Old Woodward Ave., Suite 21U 

Birmingham, MI 48009 

(248) 723-5500 

 Alan M. Greene (P31984) 

Stephen R. Estey (P53262) 

Kerry K. Cahill (P67671) 

DYKEMA GOSSETT PLLC 

Attorneys for Defendants CWCapital Asset 

Management LLC, Wells Fargo Bank, N.A., 

and Wachovia Bank, N.A., only 

39577 Woodward Avenue, Suite 300 

Bloomfield Hills, MI 48304 

(248) 203-0700 

NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT

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DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•39577 WOODWARD AVENUE•SUITE 300•BLOOMFIELD HILLS, MICHIGAN 48304 

 

TO: Clerk of the Court 

 

Mark S. Demorest 

Stephen J. Dunn 

DEMOREST LAW FIRM, PLLC 

555 S. Old Woodward Ave., Suite 21U 

Birmingham, MI 48009 

 

Defendants CWCapital Asset Management, LLC (“CWCapital”), Wells Fargo Bank, NA 

(“Wells Fargo”), and Wachovia Bank, NA (“Wachovia”), collectively, “Defendants,” by and 

through their attorneys, Dykema Gossett PLLC, hereby remove this action from the Oakland 

County Circuit Court to the United States District Court for the Eastern District of Michigan and 

state as follows: 

1. On August 5, 2009, this action was commenced against Defendants in Oakland 

County Circuit Court. 

2. On August 7, 2009, Defendants received service of the Summons, Complaint, and 

Jury Demand via personal service, acknowledged by counsel. Copies of the Summons and 

Complaint (without exhibits) are attached hereto as Exhibit A. 

3. On or about August 10, 2009, co-defendant Greenwich Capital Financial 

Products, Inc. (“Greenwich”) received service of the Summons, Complaint, and Jury Demand. 

4. Pursuant to 28 U.S.C. § 1446(b), this Notice of Removal is filed within thirty (30) 

days of the first date upon which Defendants received service of the pleadings setting forth the 

claim for relief upon which this removal is based. 

Grounds for Removal 

5. Defendants seek to remove this action on grounds of diversity of citizenship. 28 

U.S.C. § 1332(a). 

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6. This is a civil action in which the Court has original diversity jurisdiction 

pursuant to 28 U.S.C. § 1332 because, as set forth more fully below, the amount in controversy 

exceeds the sum or value of $75,000, exclusive of interest, costs, and attorneys’ fees, and this 

action is between citizens of different states. 

7. Plaintiffs and Defendants are citizens of different states as described below. 

a. In Paragraphs 1-3 of their Complaint, Plaintiffs Green Road Investments 

#2, LLC (“Green Road”), Greenfield Lincoln Investments #2, LLC 

(“Greenfield”), and Victor Park Investments, LLC (“Victor Park”) admit 

that they are Michigan limited liability companies with their principal 

place of business in West Bloomfield, Oakland County, Michigan. For 

purposes of diversity jurisdiction, a limited liability company has the 

citizenship of each of its members. CMPS Institute, LLC v. MMG II, LLC, 

521 F. Supp. 2d 616 (E.D. Mich. 2007) (citing 28 U.S.C. § 1332(a)). 

Upon information and belief, the members of plaintiff companies are 

citizens of Michigan and/or Florida. 

b. At the time this action was commenced, and at all times since, including at 

the time this Notice of Removal is filed, CWCapital is a Massachusetts 

limited liability company with its principal place of business in 

Massachusetts. None of the members of CWCapital, or any of the 

members of CWCapital’s affiliates, is a citizen of Michigan, where such 

action was brought, within meaning of 28 U.S.C. § 1332. 

c. At the time this action was commenced, and at all times since, including at 

the time this Notice of Removal is filed, Greenwich is a Delaware 

corporation with its principal place of business in Greenwich, Connecticut. 

For purposes of determining diversity jurisdiction, a corporation can be a 

citizen of two states: (1) its state of incorporation; and (2) the state of its 

principal place of business. Freeman v. Unisys Corp., 870 F. Supp. 169, 

172 (E.D. Mich. 1994) (citing 28 U.S.C. § 1332(c)). Greenwich is not a 

citizen of Michigan, where such action was brought, within meaning of 28 

U.S.C. § 1332. 

d. At the time this action was commenced, and at all times since, including at 

the time this Notice of Removal is filed, Wells Fargo is a national banking 

association with its principal place of business in California. For diversity 

purposes, national banking associations are deemed citizens of the states 

designated in its articles of association as its main office. Wachovia Bank, 

N.A. v. Schmidt, 546 U.S. 303 (2006) (citing 28 U.S.C. § 1348). 

Accordingly, Wells Fargo is a citizen of California, and is not a citizen of 

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Michigan, where such action was brought, within meaning of 28 U.S.C. § 

1332(c). 

e. At the time this action was commenced, and at all times since, including at 

the time this Notice of Removal is filed, Wachovia is a national banking 

association with its principal place of business in North Carolina. For 

diversity purposes, national banking associations are deemed citizens of 

the states designated in its articles of association as its main office. 

Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303 (2006) (citing 28 U.S.C. § 

1348). Accordingly, Wachovia is a citizen of North Carolina, and is not a 

citizen of Michigan, where such action was brought, within meaning of 28 

U.S.C. § 1332(c). 

f. Complete diversity exists: Plaintiffs are citizens of Michigan; CWCapital 

is a citizen of Massachusetts; Greenwich is a citizen of Delaware; Wells 

Fargo is a is a citizen of California; and Wachovia is a citizen of North 

Carolina. 

8. Counsel for Defendants contacted Greenwich, the other co-defendant, and has 

procured Greenwich’s consent to remove this action to federal court. 

9. Pursuant to L.R. 81.1(a) and (b) and 28 U.S.C. § 1332(a), the amount in 

controversy exceeds the sum or value of $75,000, exclusive of interest, costs, and attorneys’ fees. 

Defendants submit the following facts and reasons in support of this allegation: 

a. Consistent with state court practice, Plaintiffs’ Complaint does not specify 

the sum sought as damages. Rather, the Complaint indicates that Plaintiffs 

seek an amount in excess of $25,000. 

b. Plaintiffs allege claims for (i) Reformation of Contract – Mutual Mistake 

(ii) Declaratory Judgment – Impossibility of Performance, (iii) Breach of 

Covenant of Good Faith and Fair Dealing, and (iv) Breach of Contract. 

c. Plaintiffs claims arise from two loans obtained to refinance a mortgage on 

certain real property located in Ann Arbor, Michigan, Oak Park, 

Michigan, and Livonia, Michigan. The loan from Greenwich to Green 

Road is approximately $40,000,000, and the loan from Greenwich to 

Victor Park is approximately $28,000,000. See Exhibit A, Complaint, ¶ 

17, 20. 

d. In addition, this matter involves two letters of credit relative to the abovereferenced loans. Green Road agreed to post letters of credit totaling up to 

$1,500,000. See Exhibit A, Complaint, ¶ 40. 

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e. Although the Complaint does not plead a specific amount in controversy 

in excess of the jurisdictional amount, Plaintiffs seek (i) a reformation of 

the parties’ contract to eliminate the requirement for Green Road to post a 

$1,000,000 letter of credit, (ii) a declaratory judgment that Green Road is 

excused from posting a $500,000 letter of credit and is entitled to the 

release of a $1,000,000 letter of credit, and (iii) an award of damages 

allegedly incurred by Plaintiffs as a consequence of Defendants’ conduct 

in connection with the $40,000,000 loan and the $28,000,000 loan. 

f. While Defendants deny the allegations in Plaintiffs’ Complaint, and deny 

any liability to Plaintiffs whatsoever, if those allegations are proven to be 

true, the amount in controversy vastly exceeds the sum or value of 

$75,000, exclusive of interest, costs, and attorneys’ fees. Plaintiffs are 

seeking, among other things, reformation and rescission of two letters of 

credit totaling $1,500,000, as well as damages under two loans totaling 

approximately $40,000,000. 

10. A Notice of Filing Notice of Removal and a copy of this Notice of Removal to 

Federal Court have been filed with the Oakland County Circuit Court as required by 28 U.S.C. § 

1446(d), and copies of the same have been served upon Plaintiffs’ counsel and as verified by the 

attached Certificate of Service. 

11. Based upon the foregoing, Defendants are entitled to remove this action to this 

Court pursuant to 28 U.S.C. § 1441, et seq. 

WHEREFORE, Defendants respectfully request that this Court take jurisdiction over this 

action and grant such other relief as the Court deems proper. 

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DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•39577 WOODWARD AVENUE•SUITE 300•BLOOMFIELD HILLS, MICHIGAN 48304 

 

Date: August 24, 2009 

Respectfully submitted, 

DYKEMA GOSSETT PLLC

By:/s/ Kerry K. Cahill 

Alan M. Greene (P31984) 

Stephen R. Estey (P53262) 

Kerry K. Cahill (P67671) 

DYKEMA GOSSETT PLLC 

Attorneys for Defendants CWCapital Asset 

Management LLC, Wells Fargo Bank, N.A., 

and Wachovia Bank, N.A., only 

39577 Woodward Avenue, Suite 300 

Bloomfield Hills, MI 48304 

(248) 203-0700 

Email: kcahill@dykema.com

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DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•39577 WOODWARD AVENUE•SUITE 300•BLOOMFIELD HILLS, MICHIGAN 48304 

 

CERTIFICATE OF SERVICE

I hereby certify that on August 24, 2009, I electronically filed the foregoing paper with 

the Clerk of the Court using the ECF system which will send notification of such filing to the 

attorneys on that system, including the following: 

None 

I also certify under penalty of perjury that a copy of the foregoing Notice of Removal of 

Civil Action to Federal Court and this Proof of Service were served on the other counsel of 

record at his or her address listed above in the manner described in MCR 2.107(C)(3) on August 

24, 2009. 

By:/s/ Kerry K. Cahill 

Kerry K. Cahill (P67671) 

DYKEMA GOSSETT PLLC 

Attorneys for Defendants CWCapital Asset 

Management LLC, Wells Fargo Bank, N.A., 

and Wachovia Bank, N.A., only 

39577 Woodward Avenue, Suite 300 

Bloomfield Hills, MI 48304 

(248) 203-0700 

Email: kcahill@dykema.com

BH01\1035210.1 

ID\KKC - 087252/0999 

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