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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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Bank of New York Mellon, 11 Plaintiff, 12 vs. 13 14 Rae Ribadeneira, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-11-0982-PHX-FJM ORDER 17 18 This is a forcible entry and detainer action related to property located at 10632 E. Blue 19 Sky Road, Scottsdale, Arizona. The matter was originally filed in state court and was 20 removed on May 17, 2011. After removal, defendant Leo Stoller filed an answer to the 21 complaint and asserted various counterclaims related to wrongful foreclosure. Plaintiff Bank 22 of New York Mellon (the “Bank”) contends that Leo Stoller, a vexatious litigator, filed the 23 notice of removal in order to subvert the forcible entry and detainer proceeding to which 24 Stoller is not even a party. On February 28, 2011, before removal, the state court rejected 25 Stoller’s attempt to intervene in the forcible entry and detainer action, holding that Stoller 26 did not have standing to either intervene or file counterclaims. Despite that holding, Stoller 27 proceeded to remove the action to federal court. 28 We now have before us the Bank’s motion to remand (doc. 7), Stoller’s response (doc. 1 21) and the Bank’s reply (doc. 26); Stoller’s two motions to consolidate this case with Stoller 2 v. Bank of New York Mellon, et al., No. CV-11-338-PHX-GMS (D. Ariz. Feb. 18, 2011) 3 (docs. 6 and 16)1, and Stoller’s motion to consolidate this case with Stoller v. Bank of New 4 York Mellon, et al., No. CV-11-1105-PHX-GMS (D. Ariz. June 2, 2011) (doc. 20); Stoller’s 5 motion to stay (doc. 14); and the Bank’s motion to dismiss Stoller’s counterclaims (doc. 19), 6 and Stoller’s response (doc. 25). 7 This forcible detainer action belongs in state court. It is clear that the Bank’s 8 complaint for forcible entry and detainer arises under Arizona law and does not present a 9 federal question. Stoller’s generic reference to a federal question in the notice of removal 10 is insufficient to support removal. Moreover, there is no federal cause of action asserted as 11 a counterclaim. But even if such a claim had been presented, a federal counterclaim cannot 12 serve as the basis for a district court’s federal question removal. Holmes Group, Inc. v. 13 Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831-32, 122 S. Ct. 1889, 1894 (2002). 14 If a complaint does not present a federal question, “such action shall be removable 15 only if none of the parties in interest properly joined and served as defendants is a citizen of 16 the State in which such action is brought.” 28 U.S.C. § 1441(b). Because defendant 17 Ribadeneira is purported to be a citizen of Arizona, this action is not removable under 28 18 U.S.C. § 1441. Based on the foregoing, IT IS ORDERED GRANTING the Bank’s motion to 19 20 remand (doc. 7). 21 In light of our order remanding the case, IT IS ORDERED DENYING Stoller’s 22 motions to consolidate (docs. 6, 16, and 20), DENYING Stoller’s motion to stay (doc. 14), 23 and DENYING the Bank’s motion to dismiss counts/claims (doc. 19) as moot. 24 /// 25 /// 26 1 27 28 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. -2- 1 2 3 It is further ORDERED REMANDING this case to the Superior Court of Arizona in Maricopa County. DATED this 8th day of July, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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