Sovereign Bank v. Wolf

Filing 12

ORDER Denying 9 Defendant's Motion for Reconsideration and this case is REMANDED to the District Court for Jefferson County, Colorado, by Judge William J. Martinez on 3/8/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0230-WJM-BNB
SOVEREIGN BANK,
Plaintiff,
v.
PHILLIP A. WOLF,
Defendant.

ORDER DENYING MOTION FOR RECONSIDERATION AND REMANDING CASE

On February 19, 2013, United States District Judge R. Brooke Jackson sua
sponte remanded this action based on improper removal. (ECF No. 6.) Specifically,
Judge Jackson found that Defendant filed his Notice of Removal well in excess of the
thirty days permitted by 28 U.S.C. § 1446(b)(1). (Id. at 3.) Judge Jackson also noted
that a Defendant who is a citizen of the state in which the action is brought may not
remove the case on diversity of citizenship grounds. (Id. (citing 28 U.S.C. § 1441(b).)
Before the Court is Defendant’s “Motion for Reconsideration by the Chief Judge
of the United States District Court”. (ECF No. 9.) “Grounds warranting a motion to
reconsider include (1) an intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “Thus,
a motion for reconsideration is appropriate where the court has misapprehended the
facts, a party’s position, or the controlling law. It is not appropriate to revisit issues

already addressed or advance arguments that could have been raised in prior briefing.”
Id. (citation omitted).
First, Defendant requests reassignment of his case to the Chief Judge due to
Defendant’s allegation that Judge Jackson is biased against pro se parties. (Id. at 7-9.)
Based on this allegation, Judge Jackson recused himself and the case was randomly
reassigned to the Undersigned. (ECF Nos. 10 & 11.) While the Undersigned is not the
Chief Judge, Defendant has cited no authority entitling him to consideration of his case
by the Chief Judge. Because Judge Jackson has recused himself and the has been
reassigned to the Undersigned, the Court finds that Defendant has been afforded the
relief he sought in this aspect of his Motion.
With respect to this Court’s jurisdiction, Defendant contends that there is federal
question jurisdiction because the Fair Debt Collection Practices Act (“FDCPA”) is at
issue in this case. (ECF No. 9 at 2-3.) However, the Court has reviewed the Plaintiff’s
Complaint and there is no mention of the FDCPA. (ECF No. 4-2.) To the extent the
FDCPA may be relevant to a defense which Defendant wishes to pursue, the presence
of a federal defense does not confer jurisdiction on this Court when the Complaint
brings only state law claims. See Chandler v. O’Bryan, 445 F.2d 1045, 1055 (10th Cir.
1971) (“It is an established principle that federal jurisdiction based on a federal question
must appear from a plaintiff's ‘well-pleaded complaint’ and that anticipation in the
complaint of a federal defense, where the plaintiff's basic cause of action is grounded
only on state law, will not suffice to establish original federal jurisdiction.”)
Defendant also appears to argue that, because the contract at issue in this case
included a forum selection clause which stated that any action should be brought in the
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State or Federal courts in Massachusetts, the Colorado state courts have no
jurisdiction. (ECF No. 9 at 2-3.) However, Defendant’s belief that the Colorado state
courts do not have jurisdiction over this case does not entitle him to remove the case
this Federal Court. The remedy for any error with respect to the forum of this case is to
file a motion to dismiss or to change venue with the Colorado state court in which the
action was originally brought.
In the instant Motion, Defendant alleges no facts and makes no argument which
call into question Judge Jackson’s conclusion that Defendant’s removal of this action
was untimely. Accordingly, Defendant’s Motion for Reconsideration (ECF No. 9) is
DENIED and this case is REMANDED to the District Court for Jefferson County,
Colorado.
Dated this 8th day of March, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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