Bank of New York Mellon v. Ribadeneira et al

Filing 27

ORDER granting the Bank's 7 motion to remand. It is ordered denying Stoller's motions to consolidate (docs. 6 , 16 , and 20 ), denying Stoller's 14 motion to stay, and denying the Bank's 19 motion to dismiss counts/claims as moot. It is further ORDERED REMANDING this case to the Superior Court of Arizona in Maricopa County. Signed by Judge Frederick J Martone on 07/08/11. (Attachments: # 1 Remand Letter) (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bank of New York Mellon,
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Plaintiff,
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vs.
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Rae Ribadeneira, et al.,

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Defendants.

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No. CV-11-0982-PHX-FJM
ORDER

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This is a forcible entry and detainer action related to property located at 10632 E. Blue

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Sky Road, Scottsdale, Arizona. The matter was originally filed in state court and was

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removed on May 17, 2011. After removal, defendant Leo Stoller filed an answer to the

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complaint and asserted various counterclaims related to wrongful foreclosure. Plaintiff Bank

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of New York Mellon (the “Bank”) contends that Leo Stoller, a vexatious litigator, filed the

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notice of removal in order to subvert the forcible entry and detainer proceeding to which

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Stoller is not even a party. On February 28, 2011, before removal, the state court rejected

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Stoller’s attempt to intervene in the forcible entry and detainer action, holding that Stoller

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did not have standing to either intervene or file counterclaims. Despite that holding, Stoller

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proceeded to remove the action to federal court.

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We now have before us the Bank’s motion to remand (doc. 7), Stoller’s response (doc.

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21) and the Bank’s reply (doc. 26); Stoller’s two motions to consolidate this case with Stoller

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v. Bank of New York Mellon, et al., No. CV-11-338-PHX-GMS (D. Ariz. Feb. 18, 2011)

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(docs. 6 and 16)1, and Stoller’s motion to consolidate this case with Stoller v. Bank of New

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York Mellon, et al., No. CV-11-1105-PHX-GMS (D. Ariz. June 2, 2011) (doc. 20); Stoller’s

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motion to stay (doc. 14); and the Bank’s motion to dismiss Stoller’s counterclaims (doc. 19),

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and Stoller’s response (doc. 25).

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This forcible detainer action belongs in state court. It is clear that the Bank’s

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complaint for forcible entry and detainer arises under Arizona law and does not present a

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federal question. Stoller’s generic reference to a federal question in the notice of removal

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is insufficient to support removal. Moreover, there is no federal cause of action asserted as

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a counterclaim. But even if such a claim had been presented, a federal counterclaim cannot

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serve as the basis for a district court’s federal question removal. Holmes Group, Inc. v.

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Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831-32, 122 S. Ct. 1889, 1894 (2002).

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If a complaint does not present a federal question, “such action shall be removable

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only if none of the parties in interest properly joined and served as defendants is a citizen of

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the State in which such action is brought.” 28 U.S.C. § 1441(b). Because defendant

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Ribadeneira is purported to be a citizen of Arizona, this action is not removable under 28

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U.S.C. § 1441.
Based on the foregoing, IT IS ORDERED GRANTING the Bank’s motion to

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remand (doc. 7).

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In light of our order remanding the case, IT IS ORDERED DENYING Stoller’s

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motions to consolidate (docs. 6, 16, and 20), DENYING Stoller’s motion to stay (doc. 14),

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and DENYING the Bank’s motion to dismiss counts/claims (doc. 19) as moot.

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Stoller did not file the motions to consolidate in the Stoller, CV-11-338 action, as
required by LRCiv 42.1(a). Therefore, we will decide these motions to consolidate
notwithstanding that we are not assigned the lowest case number.
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It is further ORDERED REMANDING this case to the Superior Court of Arizona
in Maricopa County.
DATED this 8th day of July, 2011.

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