Opinion
Civil Action 3:22-CV-01921
05-16-2023
DAVID KELLER, Plaintiff, v. ADOLPH WRIGHT, et al., Defendants.
MARIANI, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
On November 3, 2022, Plaintiff David Keller (“Keller”) commenced a state mortgage foreclosure action by issuing a writ of execution in the Court of Common Pleas for Luzerne County against pro se Defendants Adolph Wright (“Wright”) and Tamazight Temple University & Trust Terre Tenant (collectively, “Defendants”) regarding the real estate located at 343 Cemetery Road, Wapwallopen, Pennsylvania (the “Property”). (Doc. 1, at 3). On December 5, 2022, Wright filed a Notice of Removal, which purported to remove the action to the United States District Court for the Middle District of Pennsylvania. (Doc. 1, at 1). On December 13, 2022, Keller filed a motion to remand. (Doc. 5).
For the following reasons, it is respectfully recommended that the action be remanded to state court for lack of jurisdiction.
I. Background and Procedural History
This action arose from an attempt to collect a debt, originally filed against Wright in the Court of Common Pleas of Luzerne County, Pennsylvania, at Docket No. 2017-07133. (Doc. 6, at 1). The judgment was then revived on November 3, 2022, in Docket No. 202205955, and was immediately served upon Wright. (Doc. 6, at 1). Wright filed responsive pleadings on June 13, 2022, and July 18, 2022, and failed to seek removal of the action to this Court. (Doc. 6, at 1).
On December 5, 2022, Wright filed the Notice of Removal, removing the state mortgage foreclosure action to the United States District Court for the Middle District of Pennsylvania. (Doc. 1). Wright is seeking removal of this action ostensibly pursuant to 28 U.S.C. § 1441(b) and 42 U.S.C. § 1983, requesting federal intervention for violations of due process and civil conspiracy. (Doc. 1, at 1). On December 13, 2022, Keller filed a motion to remand, requesting that the matter be remanded back to state court because the Court lacks subject-matter jurisdiction. (Doc. 5; Doc. 6). In response, on December 19, 2022, Wright filed an “Amended Notice of Removal and Motion for Injunction,” in which he asserts counterclaims against Keller, including violation of the due process clauses and the Equal Protection Clause. (Doc. 7, at 2). In addition, Wright requests that the Court “enjoin this action and permit discovery to discern what private contractors are acting as agents pursuant to 72 P.S. 5860.201.1 or 201a and subject to 42 USC 1983 or private actors.” (Doc. 7, at 2).
The motion to remand has been fully briefed and is now ripe for disposition. (Doc. 5; Doc. 6; Doc. 7).
II. Standard of Review
“[T]he party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court,” and “any doubt about the right of removal requires resolution in favor of remand.” Fed. Nat'lMortg. Ass'n v. Preston, No. 4:15-CV-01739, 2015 WL 6751064, at *1 (M.D. Pa. Nov. 5, 2015) (quoting Federico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007) and Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009)). Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants.”
The United States District Courts are “courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). This Court can assert original jurisdiction over cases based either on diversity of citizenship, 28 U.S.C. § 1332(a), or federal question jurisdiction, 28 U.S.C. § 1331.
With regard to diversity jurisdiction, 28 U.S.C. § 1441(b)(2)-known informally as the “forum defendant” bar to removal jurisdiction-provides that “[a] civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Thus, the forum defendant rule precludes removal based on diversity where a defendant is a citizen of the state in which the plaintiff originally filed the case.14 Moreover, “federal removal jurisdiction . . . is determined (and must exist) as of the time the complaint is filed and removal is effected.”
Preston, 2015 WL 6751064, at *2 (quoting Strotek Corp. v. Air Transp. Ass'n. Of Am., 300 F.3d 1129, 1131 (9th Cir. 2002)).
With regard to federal question jurisdiction, the Supreme Court of the United States “has repeatedly held that, in order for a claim to arise 'under the Constitution, laws, or treaties of the United States,' a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action.” Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127 (1974) (internal citation omitted). As such, “federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc., 482 U.S. at 392. “Federal jurisdiction cannot be predicated on an actual or anticipated defense: It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of [federal law].” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (internal citation omitted). “Nor can federal jurisdiction rest upon an actual or anticipated counterclaim.” Vaden, 556 U.S. at 60.
It is well settled that “[t]he removal statutes ‘are to be strictly construed against removal and all doubts should be resolved in favor of remand.'” Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (quoting Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (citations omitted)). Therefore, “a party who urges jurisdiction on a federal court bears the burden of proving that” removal is appropriate. Boyer, 913 F.2d at 111. Thus, when considering tardy removal petitions, the Court is guided by several basic legal precepts. In this setting:
The defendants bear the burden of establishing removal jurisdiction and demonstrating compliance with all pertinent procedural requirements. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991); Steel Valley Auth. v. Union Switch &Signal Div., Am. Standard, Inc., 809 F.2d 1006, 1011 (3d Cir. 1987). Removal statutes are to be strictly construed and all doubts resolved in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Boyer, 913 F.2d at 111; Landman v. Borough of Bristol, 896 F.Supp. 406, 408 (E.D. Pa. 1995). One of the procedural requirements of removal is that the defendants must remove the case within thirty days of service of the complaint. 28 U.S.C. § 1446(b).
Shadie v. Aventis Pasteur, Inc., 254 F.Supp.2d 509, 514 (M.D. Pa. 2003).
Moreover, while the 30-day removal deadline prescribed by § 1446(b) is not jurisdictional, courts generally agree that there is no discretion-the 30-day filing requirement for removal petitions is mandatory. See e.g.,Blue Cross of Ne. Pa. v. New Life Homecare, No. 3:07-CV-2138, 2008 WL 1902414, at *2 (M.D. Pa. Apr. 25, 2008).
III. Discussion
Keller seeks the remand of this action to the Court of Common Pleas of Luzerne County pursuant to 28 U.S.C. § 1447(c). (Doc. 6, at 1). In support of his motion, Keller sets forth the following reasons as to why the Court should remand this action: (1) removal is improper under 28 U.S.C. § 1441(b) because Wright resides in Pennsylvania; (2) removal is contrary to 28 U.S.C. § 1446(b)(1) because Wright did not file the removal for more than thirty (30) days after being served with the revival; (3) removal is contrary to 28 U.S.C. § 1446(b)(2)(a) because none of the other defendants have joined in on the removal; and (4) removal is contrary to 28 U.S.C. § 1332 because the amount in controversy is not more than $75,000.00. (Doc. 6, at 1). In opposition, Wright asserts:
Removal is based upon 42 U.S.C. 1983, the due process clauses in the U.S. Constitutional Amendments and the Equal Protection Clause as the private company treats me differently based on race when it sends the point person to take the property after coordination as the contract with the private contractor for essential government operations does not contain any of the usual statements pr[e]scribing treatments based on race but directs getting money as the highest priority.(Doc. 7, at 1).
The undersigned finds that this state mortgage foreclosure action does not belong in federal court. At the onset, the removal petition filed by Wright conclusively demonstrates that Wright allowed approximately thirty-two (32) days to elapse after service of the state court mortgage foreclosure complaint in 2022 before seeking to remove this case to federal court. (Doc. 1, at 1, 3). Since “removal statutes ‘are to be strictly construed against removal and all doubts should be resolved in favor of remand,'” Boyer, 913 F.2d at 111, and “the thirtyday requirement for filing of a removal petition is mandatory,” Blue Cross of Ne. Pa., 2008 WL 1902414, at *2, the Court should not countenance this effort to discount these statutory deadlines, and use the Court's removal jurisdiction in a fashion which does violence to comity between the state and federal courts, is disruptive of judicial economy, and violates the animating principles which guide our entire legal system, a system designed to promote the timely and fair resolution of cases.
Furthermore, the undersigned notes that removal was improper because Wright failed to secure the consent of all Defendants before filing the Notice of Removal. The removal statute provides that “[w]hen a civil action is removed solely under 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). This procedural requirement is commonly referred to as the “rule of unanimity.” Balazik v. Cty. of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995). Failure of all defendants to join or consent to the removal constitutes a defect in the removal procedure, though it is not a jurisdictional defect. Balazik, 44 F.3d at 213. The rule of unanimity does not apply in three narrow exceptions: (1) a non-joining defendant is unknown or is a nominal party; (2) a defendant has been fraudulently joined; or (3) a non-resident defendant had not been served at the time of removal. Balazik, 44 F.3d at 213; see also Lewis v. Rego Co., 757 F.2d 66, 69 (3d Cir. 1985). Defendants are given thirty (30) days after service of the complaint to remove the action to federal court. 28 U.S.C. § 1446(b).
In this case, Tamazight Temple University & Trust Terre Tenant has not consented to removal.Nowhere in the Notice of Removal is there any indication that Tamazight Temple University & Trust Terre Tenant joined in the removal, nor did it file its concurrence to removal within the applicable thirty day period for removal to be proper. (Doc. 1; Doc. 7). Even if Tamazight Temple University & Trust Terre Tenant decided to consent at some later time, their consent would fall outside of the thirty day time period provided by the statute. There is no amendment that could save this procedural deficiency and the case must be remanded.
Although Wright may represent himself pro se, a non-lawyer may not represent anyone other than themselves in federal court. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 232 (3d Cir. 1998) (“The rule that a non-lawyer may not represent another person in court is a venerable common law rule.”), abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007). This principle has been applied by the Supreme Court, the Third Circuit, and other courts in various contexts. See, e.g., Rowland v. Cal. Men's Colony, 506 U.S. 194, 202 (1993) (recognizing that corporations must be represented by counsel and that “save in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654 . . . does not allow corporations, partnerships or associations to appear in federal court otherwise through a licensed attorney” (footnote omitted)). Here, Wright is not a licensed attorney. Therefore, he may not represent Tamazight Temple University & Trust Terre Tenant or consent to removal on its behalf.
To the extent that Wright asks that the Court enjoin the sale of the Property, the undersigned notes that the Court arise prohibited from doing so by the Anti-Injunction Act (“AIA”), 28 U.S.C. § 2283. As another court has recently explained when considering, and denying, a similar request:
The Anti-Injunction Act prohibits a federal court from enjoining the sheriff's sale. The Act provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. The Anti-Injunction Act bars a federal court from enjoining state court proceedings “unless the injunction falls within one of three specifically defined exceptions.” In re Prudential Ins. Co. of America Solo Practices Litig., 314 F.3d 99, 103 (3d Cir. 2002) (quoting Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286 (1970)).
The Anti-Injunction Act precludes a federal court from enjoining state court eviction or foreclosure proceedings. See, e.g., Coppedge v. Conway, Civ. A. No. 14-1477, 2015 WL 168839, at *1-2 (D. Del. Jan. 12, 2015) (Anti-Injunction Act prohibited federal court from enjoining sheriff's sale ordered by state court); Rhett v. Div. of Hous., Dep't of Cmty. Affairs, Civ. A. No. 14-5055, 2014 WL 7051787, at *3 (D.N.J. Dec. 12, 2014) (“[T]o the extent Plaintiff requests that this Court dismiss the eviction proceedings or order them transferred to this Court, the Anti-Injunction Act prohibits this Court from taking such action.”); E.Liggon-Redding v. Generations, Civ. A. No. 14-3191, 2014 WL 2805097, at *2 (D.N.J. June 20, 2014) (holding that under the Anti-Injunction Act, federal courts generally “lack the authority to stay any state court proceedings, including Eviction Actions”); Mason v. Bank of Am., N.A., Civ. A. No. 13-3966,
2013 WL 5574439, at *7 (E.D. Pa. Oct. 19, 2013) (“Courts within the Eastern District of Pennsylvania have declined to enjoin state court proceedings involving foreclosures and sheriff's sales pursuant to the Anti-Injunction Act.”).
Therefore, because we lack jurisdiction to enjoin the state court foreclosure and ejectment proceedings, we must deny [this] request for emergency relief and decline to enjoin the state court proceedings.
McMillan v. Nationstar Mortg. Co., No. CV 20-1321, 2020 WL 4201605, at *2 (E.D. Pa. July 22, 2020).
Thus, the Court cannot afford Wright the relief that he seeks in the Amended Notice of Removal. Given that the Notice of Removal is untimely, Wright failed to obtain consent of all Defendants prior to removal, and the relief sought by Wright is not available, it is recommended that the motion to remand be granted and this case be remanded to the Court of Common Pleas of Luzerne County. (Doc. 5).
IV. Recommendation
Based on the foregoing reasons, it is respectfully recommended that Keller's motion to remand (Doc. 5) be GRANTED, the case be REMANDED to the Court of Common Pleas for the Luzerne County, and the Clerk of Court be directed to CLOSE this case. On remand, the state court shall address whether Rahman is entitled to proceed in forma pauperis. (Doc. 4).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated May 16, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.