Case 3:18-cv MO Document 1 Filed 04/04/18 Page 1 of 5

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1 Case 3:18-cv MO Document 1 Filed 04/04/18 Page 1 of 5 LEAH C. LIVELY, OSB # leahlively@dwt.com Telephone: (503) Facsimile: (503) Attorney for Defendants IN THE UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION MATTHEW VALLES, Case No. 3:18 cv 575 PLAINTIFF, NOTICE OF REMOVAL v. WELLS FARGO BANK N.A. and KIMBERLY THRUSH, DEFENDANTS. TO: CLERK, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PLEASE TAKE NOTICE that, pursuant to 28 U.S.C and 1441(a), Wells Fargo Bank removes this action from the Circuit Court of the State of Oregon for Multnomah County to the United States District Court for the District of Oregon, Portland Division. Removal of this action is proper based on the following grounds: I. THIS NOTICE IS TIMELY 1. On February 28, 2018, an action was commenced in the Multnomah County Circuit Court of the State of Oregon, entitled Matthew Valles v. Wells Fargo Bank N.A. and Kimberly Thrush, Case No. 18CV Exhibits 1 and 2 (Complaint and OECI printout for Page 1 - NOTICE OF REMOVAL

2 Case 3:18-cv MO Document 1 Filed 04/04/18 Page 2 of 5 Multnomah County Circuit Court). 1 The Summons and Complaint were served on Wells Fargo on March 6, Exhibit 3 (transmittal of Summons and Complaint service on Wells Fargo s registered agent); Ex. 4 (Secretary of State Business Registry listing Wells Fargo s registered agent). Accordingly, this notice is timely, as less than 30 days have expired since receipt by Wells Fargo of a copy of the Summons and Complaint herein; Wells Fargo has not entered or appeared or voluntarily invoked or submitted to the jurisdiction of the Circuit Court of the State of Oregon for the County of Multnomah in any manner. 2. Defendant Kimberly Thrush has not been served with a Summons and Complaint in this matter. Declaration of Kimberly Thrush at 2. II. 3. Wells Fargo reserves and does not waive defenses relating to defects in service. THE REMOVING DEFENDANT HAS SATISFIED THE PROCEDURAL REQUIREMENTS FOR REMOVAL 4. The above-described action is a civil action which may be removed from the state court under 28 U.S.C. Sections 1332 and 1441 because the amount in controversy exceeds $75,000, exclusive of interest and costs, and it is between citizens of different states. See Ex. 1, Complaint at Plaintiff claims damages in the amount of $20,000,000, and further seeks attorney fees, expert witness fees, and costs and disbursements against Wells Fargo. See Ex. 1 at 32 ( Mr. Valles suffered non-economic loss of $20 million); see also Ex 1 at p. 15 of 18 ( Prayer for Relief A-D). 6. There is complete diversity between plaintiff and Wells Fargo. Upon information and belief, plaintiff is a citizen of Oregon. Ex. 1, Complaint at 2. Wells Fargo is organized under the National Bank Act. Declaration of Patricia A. Ruedenberg, 2. Its main office, as set 1 All exhibits referenced herein are attached to the Declaration of Leah C. Lively, and are incorporated by reference. Page 2 - NOTICE OF REMOVAL

3 Case 3:18-cv MO Document 1 Filed 04/04/18 Page 3 of 5 forth in its Articles of Association, is in the State of South Dakota. 2 Id. Defendant Thrush is a resident of Oregon, but her citizenship should be disregarded, and she need not join in seeking removal of this action, because she has not been served. See Cripps v. Life Insurance Co. of N. America, 980 F.2d 1261, 1266 (9th Cir. 1992) ( a party cannot create diversity by naming as a defendant a party who is not in fact brought into the lawsuit by service of process ); Spencer v. United States District Court for the Northern District of California, 393 F.3d 867, (9th Cir. 2004) (the limitation on removal pursuant to diversity jurisdiction where a forum defendant is involved does not exist where such defendant has not been joined and served at the time of removal. ) (emphasis added); see also Pullman v. Jenkins Co., 305 U.S. 534, 537 (1939) (removability is to be determined at the time of the petition for removal. ) Thrush s citizenship should also be disregarded for purposes because she is fraudulently joined as set forth in Section III, below. 7. Because Wells Fargo and plaintiff are diverse, and because only Wells Fargo has been properly joined and served, removal is proper. Republic Western Insurance Company v. International Insurance Company, 765 F. Supp. 628, 629 (1991) (denying removal where the diverse defendant, but not the forum defendant, was served at the time of removal because, There is a major limitation on removal jurisdiction in diversity cases: Even if there is complete diversity, removal is allowed 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. ) (citations omitted). 8. Pursuant to 28 U.S.C. 1446(a), venue lies with this Court because plaintiff s action is pending in the Circuit Court of the State of Oregon for the County of Multnomah, which is within this District and Division. 2 A national bank is a citizen of the state in which its main office, as set forth in its articles of association, is located. Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006). Page 3 - NOTICE OF REMOVAL

4 Case 3:18-cv MO Document 1 Filed 04/04/18 Page 4 of 5 III. THRUSH S CITIZENSHIP SHOULD BE DISREGARDED BECAUSE SHE IS NOT THE REAL PARTY IN INTEREST AND PLAINITFF FAILS TO STATE A CLAIM AGAINST HER; SHE IS FRAUDULENTLY JOINED 9. When considering diversity of the parties for removal purposes, a federal district court looks to the citizenship of the real parties in interest; and where there is complete diversity between them, the presence of a nominal party with no real interest in the controversy will be disregarded. Jurisdiction is not ousted by the joinder or non-joinder of mere formal parties. Roth v. Davis, 231 F.2d 681, 683 (9th Cir. 1956). Further, when parties are fraudulently joined, as with Thrush, courts disregard their citizenship for diversity purposes, dismiss them, and recognize federal diversity jurisdiction for the claims against the remaining defendants. Morris v. Princess Cruise, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). 10. A defendant is fraudulently joined when the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state. Id. (internal quotations omitted) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)). 11. Thrush is fraudulently joined and her citizenship should be disregarded for diversity purposes for two reasons: First, Plaintiff fails to state a cause of action against her: Plaintiff s complaint fails to allege any facts to support that Thrush intentionally acted in concert or colluded to intentionally aid and abet retaliation. See Hernandez v. FedEx Freight, Inc., 2017 WL (D. Or. June 12, 2017) (holding that the plaintiff failed to state a claim against the plaintiff s former supervisor because the complaint says nothing about intent or knowledge of aiding in discrimination or retaliation ); see also State ex rel. Juvenile Dept. of Multnomah County v. Holloway, 102 Or. App. 553, 557 (1990) (A degree of concert or collusion between accomplices must exist before there can be liability for aiding and abetting. ). Second, Plaintiff alleges damages only against Wells Fargo, and that all actions taken by Thrush were within the scope of her employment with Wells Fargo, demonstrating Wells Fargo is the real party in interest. Ex. 1, Complaint, at 31-34, p. 15. Page 4 - NOTICE OF REMOVAL

5 Case 3:18-cv MO Document 1 Filed 04/04/18 Page 5 of Wells Fargo has good and sufficient defenses to this action and does not waive any defenses, jurisdictional or otherwise, by the filing of this Notice. 13. Pursuant to 28 U.S.C. 1446(d), Wells Fargo will file a notice of removal with the Clerk of the Circuit Court, Multnomah County, Oregon, informing the court that this matter has been removed to federal court. A copy of this Notice of Removal, including all supporting exhibits, will be attached to the notice of removal filed with the circuit court. Pursuant to 28 U.S.C. 1446(d), a copy of this Notice of Removal is also being served upon plaintiff. DATED this 4th day of April, By s/ Leah C. Lively Leah C. Lively OSB # Telephone: (503) Facsimile: (503) leahlively@dwt.com Attorney for Defendants Page 5 - NOTICE OF REMOVAL