US Bank Trust, N.A. v. Walbert

Filing 18

RULING (attached). For the reasons set forth in the attached Ruling, Defendant's Motion for Reconsideration is DENIED. This case shall be remanded forthwith to the Connecticut Superior Court, Judicial District of Danbury. Signed by Judge Charles S. Haight, Jr. on 10/16/2017. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

U.S. BANK TRUST, N.A., AS TRUSTEE
FOR WELLS FARGO ASSET SECURITIES
CORPORATION MORTGAGE PASSTHROUGH CERTIFICATES SERIES 2005AR2, SUCCESSOR WACHOVIA BANK,
N.A.,
Plaintiff,

3:17-cv-00991 (CSH)

October 16, 2017

v.
ANDREW WALBERT,
Defendant.

RULING ON DEFENDANT'S MOTION FOR RECONSIDERATION
HAIGHT, Senior District Judge:
On June 16, 2017, Defendant Andrew Walbert ("Defendant"), appearing pro se, filed a
Notice of Removal removing from the Connecticut Superior Court, Judicial District of Danbury a
foreclosure action brought against him by Plaintiff U.S. Bank National Association, as Trustee,
Successor in Interest to Wachovia Bank, National Association, as Trustee for Wells Fargo Asset
Securities Corporation, Mortgage Pass-Through Certificates, Series 2005-AR2 ("Plaintiff").1 Plaintiff
filed a Motion to Remand the action to the state court and an accompanying Memorandum of Law
in Support of its Motion on July 17, 2017. On August 18, 2017, this Court issued a Ruling [Doc. 14]
granting Plaintiff's Motion to Remand ("August 18 Ruling"), familiarity with which is assumed.
On August 31, 2017, Defendant filed a motion for reconsideration of the Court's August 18

1

Defendant incorrectly named Plaintiff in his removal papers in the captions. The Court uses
the correct name as stated by Plaintiff in its papers, see Doc. 10 at 1 n.1.

Ruling. Doc. 15. For the reasons set forth below, Defendant's Motion for Reconsideration is
DENIED.
I.

Standard of Review
The standard for granting a motion for reconsideration "is strict, and reconsideration will

generally be denied unless the moving party can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to alter the conclusion
reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing
Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990)). The Second Circuit has adhered
to the strict standard for reconsideration set forth in Shrader. See, e.g., Oparah v. New York City
Dep't of Educ., 670 F. App'x 25, 26 (2d Cir. 2016) (quoting Shrader, 70 F.3d at 257). In this District,
the Local Rules of Civil Procedure dictate that "[m]otions for reconsideration shall not be routinely
filed and shall satisfy the strict standard applicable to such motions. Such motions will generally be
denied unless the movant can point to controlling decisions or data that the court overlooked in the
initial decision or order." D. Conn. L. Civ. R. 7(c)(1).
It is well-settled that a motion for reconsideration is "not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
'second bite at the apple.'" Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.
2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998)), as amended (July 13,
2012). See also Shrader, 70 F.3d at 257 ("[A] motion for reconsideration should not be granted
where the moving party seeks solely to relitigate an issue already decided."); Lopez v. Smiley, 375
F. Supp. 2d 19, 21–22 (D. Conn. 2005) ("A motion for reconsideration may not be used to plug gaps
in an original argument or to argue in the alternative once a decision has been made." (quotation
-2-

marks and citation omitted)); Range Rd. Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392
(S.D.N.Y. 2000) ("[A] motion for reconsideration is appropriate only where the movant
demonstrates that “the Court has overlooked controlling decisions or factual matters that were put
before it on the underlying motion ... and which, had they been considered, might have reasonably
altered the result before the court." (emphasis in original) (citation and quotation marks omitted)).
It thus follows that the "major grounds justifying reconsideration are 'an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir.1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at
790). See also Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104
(2d Cir. 2013) (same).
II.

Discussion
In seeking reconsideration of the Court's August 18 Ruling, Defendant argues that he is "not

removing this case based on Diversity and Rooker-Feldman does not apply because we are bringing
up issues which were not previously litigated in the State Court action." Doc. 15 at 1. Defendant
quotes at length from an unknown treatise that discusses removal, jurisdiction based on a federal
question, and Article III, Section II of the Constitution. See id. at 1-2. Defendant references the
Supreme Court's decision in Lynch v. Household Finance Corp., 405 U.S. 538 (1972), seemingly
to advance the argument that the Court has federal question jurisdiction to hear this case, pursuant
to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.2 He alleges that his 14th Amendment "right to be heard
2

The Court previously determined that Lynch is inapplicable to the case at bar. Defendant
does not offer any new information in his motion for reconsideration that would cause the Court to
revisit that finding.
-3-

in federal court" will be violated if this case is remanded. Doc. 15 at 5.
Defendant's request for reconsideration does not pass muster under the strict standards for
reconsideration. As an initial matter, the arguments that Defendant asserts were not previously
presented to this Court. Defendant states that he is not removing the case based on diversity
jurisdiction, in direct contravention to Defendant's prior filings which specifically cited diversity as
the basis of the Court's jurisdiction to hear this matter. See Doc. 1 at 2; Doc. 13 at 5. Indeed, in
opposition to Plaintiff's motion to remand, Defendant argued at length that the Court has jurisdiction
to hear this case based on the diversity of the parties and the amount in controversy. See Doc. 13 at
5-6. Defendant now appears to assert that the Court should exercise its federal question jurisdiction,
as he raises claims pursuant 42 U.S.C. § 1983, and pursuant to 28 U.S.C. § 1343. As this argument
was not advanced previously, it is not a proper basis for reconsideration. See Smith v. New York City
Dep't of Educ., 524 F. App'x 730, 734 (2d Cir. 2013) ("A motion for reconsideration is not the
appropriate mechanism for a party to ... advance new facts, issues, or arguments not previously
presented to the court." (citation omitted)).
Even were the Court to consider Defendant's argument, it would find it to be without merit.
District courts have jurisdiction over "all civil actions arising under the constitution, laws, or treaties
of the United States." 28 U.S.C. § 1331. Under the well-pleaded complaint rule, "a suit 'arises under'
federal law 'only when the plaintiff's statement of his own cause of action shows that it is based upon
[federal law].' Federal jurisdiction cannot be predicated on an actual or anticipated defense. ... Nor
can federal jurisdiction rest upon an actual or anticipated counterclaim." Vaden v. Discover Bank,
556 U.S. 49, 60 (2009) (quoting Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)).
Here, Plaintiff's complaint suggests no basis for federal question jurisdiction; the allegations in the
-4-

complaint are solely premised upon a state foreclosure action.3 Accordingly, the Court still finds no
basis to exercise its jurisdiction over this matter.
Moreover, Defendant's argument regarding jurisdiction does not resolve the untimeliness of
the removal of this action, which was previously determined to be an independent ground warranting
remand. As the August 18 Ruling noted, even were the Court to have subject matter jurisdiction over
this matter– which it does not– Defendant's removal of the action is untimely.
Finally, the Court notes that the motion to reconsider is itself untimely, furnishing another
ground for its denial. See Lopez, 375 F. Supp. 2d at 21 ("[A] failure to timely file a motion for
reconsideration constitutes sufficient grounds for denying the motion."). Local Rule 7(c) requires a
motion for reconsideration to be filed within seven days from the order from which relief is sought.
D. Conn. L. Civ. R. 7(c)(1). Defendant's motion was filed thirteen days following the Court's Ruling,
and is therefore late.
In sum, Defendant's motion to reconsider does not "point to controlling decisions or data that
the court overlooked." Shrader, 70 F.3d at 257. Defendant's motion only attempts to raise new
arguments which were not before the Court on the original motion; this fails as a basis for
reconsideration. In any event, the motion is untimely. Accordingly, Defendant's motion for
reconsideration will be denied.

3

To the extent Defendant seeks to challenge or overturn the state court proceedings regarding
the foreclosure of his home, as noted in the August 18 Ruling, this Court would also likely lack
subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. See Ashby v. Polinskv, 328 Fed.
App'x 20, 21 (2d Cir. 2009).
-5-

III.

Conclusion
For the foregoing reasons, Defendant's Motion for Reconsideration is DENIED. This case

shall be remanded forthwith to the Connecticut Superior Court, Judicial District of Danbury.
It is SO ORDERED.
Dated: New Haven, Connecticut
October 16, 2017

/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

-6-