Thomas v. Bank of America Corporation et al

Filing 16

ORDER. Plaintiff's 11 Motion to Remand Based Upon Younger Abstention is denied. Plaintiff's 12 Forthwith Motion for Accelerated or Abbreviated Briefing Schedule on Plaintiff's Motion for Remand Based Upon Younger Abstention, for Accelerated Ruling On Younger Abstention Motion and to Hold Briefing in Abeyance on Defendants' Motion to Dismiss is denied as moot. Plaintiff's 15 Motion for Extension of Time to Respond to Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) is denied. On or before 4/30/2012, plaintiff shall file a response to Defendants' 8 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6). By Judge Philip A. Brimmer on 4/25/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00797-PAB-KMT
LEON J. THOMAS
Plaintiff,
v.
BANK OF AMERICA CORPORATION and
THE BANK OF NEW YORK MELLON CORPORATION
Defendants.

ORDER

This matter is before the Court on the Motion for Remand [Docket No. 11] filed
by plaintiff Leon J. Thomas. Although plaintiff’s motion for remand is not fully briefed,
the Court exercises its discretion to rule on the motion. See D.C.COLO.LCivR 7.1C.
(“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after
it is filed.”).
I. BACKGROUND
On March 5, 2012, plaintiff commenced this action [Docket No. 3] against
defendants Bank of America Corporation (“BOA”) and the Bank of New York Mellon
Corporation (“BNYM”) in the District Court for Elbert County, Colorado. In the
complaint, plaintiff brought claims against defendants regarding the mortgage loan on
his residence for breach of contract, breach of the implied covenant of good faith and
fair dealing, outrageous conduct, recklessness, violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and unconscionable debt collection

in violation of Colo. Rev. Stat. § 5-5-109. Docket No. 3 at 4-7. Plaintiff also sought to
enjoin defendants from foreclosing on his real property. Id.
On March 28, 2012, defendants removed the case to this Court [Docket No. 1],
citing federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction
under 28 U.S.C. § 1332 as grounds for removal. Docket No. 1 at 2-3. Defendants
contend that the Court has federal question jurisdiction because plaintiff asserts a claim
for violations of the FDCPA. Id. Additionally, defendants state that the parties are
diverse, as plaintiff is a resident of Colorado, while BOA is a citizen of North Carolina
and BNYM is a New York company with its principal place of business in New York. Id.
at 3, ¶¶ 8-10. Furthermore, defendants claim that the amount in controversy is over
$75,000 because, among other things, plaintiff seeks to enjoin the sale of real property
valued at $225,000. Id. at 3-4, ¶ 11.
In his motion, plaintiff requests that the Court remand this case to the District
Court for Elbert County, Colorado. Plaintiff alleges that defendants have commenced
foreclosure proceedings and a hearing pursuant to Rule 120 of the Colorado Rules of
Civil Procedure is scheduled for May 2, 2012. Docket No. 11 at 5, ¶ 10. Plaintiff claims
that he was not in default of his loan and filed this motion to enjoin the foreclosure
proceedings. Id. 5-6, ¶ 12. Plaintiff argues that, because state court proceedings are
ongoing, the holding in Younger v. Harris, 401 U.S. 37 (1971),1 dictates that this Court
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Younger and its progeny espouse the policy that a federal court should not
interfere with a pending state judicial proceeding in which important state interests are
at stake. See Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,
431-32 (1982). Typically, Younger abstention is used when a litigant brings an action in
federal court based upon federal law seeking to enjoin an ongoing state action. See id.
In relying upon Younger, plaintiff focuses on the fact that the removal in this action
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abstain from exercising jurisdiction over this case. Id. at 4, ¶ 6. Plaintiff requests that,
instead of dismissing the case, the Court remand the matter to state court because time
is of the essence given the impending Rule 120 hearing.
II. ANALYSIS
Procedures for remand are governed by 28 U.S.C. § 1447, which states:
A motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of
the notice of removal under section 1446(a). If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.
28 U.S.C. § 1447(c). Therefore, remand is authorized pursuant to section 1447(c) only
when there is a defect in the removal procedure or if the district court lacks subject
matter jurisdiction. See Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir. 2006) (“[t]he
two categories of remand within § 1447(c) . . . are remands for lack of subject matter
jurisdiction and for defects in removal procedure.”).
Generally speaking, a defendant may remove “any civil action brought in a State
court of which the district courts of the United States have original jurisdiction.” 28
U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1331, “[t]he district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.” Additionally, “[t]he district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive

interfered with the state court’s jurisdiction over it, and, therefore this Court should
remand the action to end that interference. Plaintiff, however, does not claim that the
federal court case interferes with the currently pending state action. Rather, plaintiff
argues that there is a potential for interference between this action and the Rule 120
proceeding should he seek an injunction.
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of interest and costs, and is between . . . citizens of different States.” 28 U.S.C.
1332(a). The party invoking federal jurisdiction bears the burden of establishing such
jurisdiction as a threshold matter. Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220,
1224 (10th Cir. 2004).
Because plaintiff’s fifth claim for relief asserts violations of the FDCPA, it
indisputably arises under the laws of the United States, making this action removable
under 28 U.S.C. § 1441(b). See Wisconsin Dept. of Corrs. v. Schacht, 524 U.S. 381,
386 (1998) (presence of one claim “arising under” federal law is sufficient to satisfy the
requirement that the case be within the original jurisdiction of the district court for
removal). Moreover, the notice of removal satisfies the elements for diversity
jurisdiction as it alleges that the parties are diverse and the real property at issue is
valued at over $75,000. Docket No. 1 at 2-3. Accordingly, because the Court is
satisfied that it has subject-matter jurisdiction over this case, remand pursuant to 28
U.S.C. § 1447(c) is improper. See England v. La. Bd. of Medical Examiners, 375 U.S.
411, 464-65 (1964) (“‘When a federal court is properly appealed to in a case over which
it has by law jurisdiction, it is its duty to take such jurisdiction’”); Buchner v. F.D.I.C., 981
F.2d 816, 817 (5th Cir. 1993) (“a court has no discretionary authority to remand a case
over which it has subject matter jurisdiction.”). Given that a discussion of Younger
abstention is not necessary for the resolution of this motion, the Court does not resolve
that issue.2
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Even assuming that Younger abstention applies, the Court could not remand
the case. In Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), the Supreme Court
held that federal courts have the power to dismiss or remand cases based on
abstention principles only where the relief sought is equitable or otherwise discretionary.
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III. CONCLUSION
Accordingly, it is
ORDERED that Plaintiff’s Motion for Remand Based Upon Younger Abstention
[Docket No. 11] is DENIED. It is further
ORDERED that Plaintiff’s Forthwith Motion for Accelerated or Abbreviated
Briefing Schedule on Plaintiff’s Motion for Remand Based Upon Younger Abstention,
for Accelerated Ruling On Younger Abstention Motion and to Hold Briefing in Abeyance
on Defendants’ Motion to Dismiss [Docket No. 12] is DENIED as moot. It is further
ORDERED that Plaintiff’s Motion for Extension of Time to Respond to
Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [Docket No. 15] is
DENIED. It is further
ORDERED that, on or before April 30, 2012, plaintiff shall file a response to
Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [Docket No. 8].

Id. at 731; accord Espinoza v. Maurer, No. 09-cv-01653-MSK-MJW, 2010 WL 865946,
at *3 (D. Colo. March 5, 2010) (court cannot remand or dismiss based on abstention
when relief sought is damages). As the Ninth Circuit states, Quackenbush “observes
that abstention principles have been applied to actions at law only to permit federal
courts to stay adjudication, not to dismiss the federal suit altogether.” Gilbertson v.
Albright, 381 F.3d 965, 975 (9th Cir. 2004). Here, however, plaintiff’s complaint lists
primarily legal and statutory damages in the form of breach of contract, breach of the
implied covenant of good faith and fair dealing, violations of the FDCPA, and
unconscionable debt collection in violation of Colo. Rev. Stat. § 5-5-109. Docket No. 3
at 8. Because this case is primarily a damages action, the Court does not have the
authority to decline to exercise jurisdiction.
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DATED April 25, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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