Westport v. Cuseo Family, LLC et al

Filing 20

ORDER. As discussed in the attached, the 8 and 11 motions to remand are GRANTED. The 2 motion for leave to proceed in forma pauperis is DENIED as moot. The Clerk is directed to remand this case. Signed by Judge Michael P. Shea on 8/1/2018. (Taykhman, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TOWN OF WESTPORT,
Plaintiff,

No. 3:18-cv-932 (MPS)

v.
CUSEO FAMILY, LLC, ALBERT CUSEO, III, and
A&J FARM STAND, LLC
Defendants.

RULING ON MOTIONS TO REMAND
I.

Background
Plaintiff the Town of Westport (“the Town”) brought this action against Defendants Cuseo

Family, LLC, A&J Farm Stand, LLC, and Albert Cuseo, III (collectively, “Defendants”) on June
26, 2015, in the Superior Court for the Judicial District of Bridgeport-Fairfield. The Town sought
to foreclose upon real estate tax and sewer use liens on a parcel of commercial property located at
1680 Post Road East, Westport, Connecticut. (ECF No. 1 at 17, 27-36.) Defendant Albert Cuseo,
III removed the case to this Court on June 4, 2018, citing diversity jurisdiction and federal question
jurisdiction, and arguing that removal was timely on the grounds of the plaintiff’s bad faith in
preventing removal. (ECF No. 1.)
In his Notice of Removal, Cuseo states that co-defendants Cuseo Family, LLC—which he
claims was registered in Colorado after being dissolved in Connecticut—and A&J Farm Stand

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LLC, consent to removal.1 Cuseo takes issue with the foreclosure proceedings that occurred in
Superior Court since 2015, in which the Superior Court entered a judgment of foreclosure in the
Town’s favor, and states that he “is now turning to the Federal Courts.” (ECF No. 1 at 8.) He
argues that the Court has federal question jurisdiction because the foreclosure proceedings
implicate several of his federal constitutional rights and because they involved alleged violations
of the federal Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”).
Shortly after removal, the Court issued an order to show cause why remand was not
warranted for lack of subject-matter jurisdiction. (ECF No. 6.) The Order to Show Cause notified
Mr. Cuseo that neither diversity nor federal question jurisdiction appeared to exist, and that federal
jurisdiction also appeared barred by the Rooker-Feldman doctrine. (Id.)
Before me now are motions to remand the case back to state court filed by the Town and
Defendant Cuseo Family LLC. (ECF Nos. 8, 11.) For the reasons set forth below, the motions are
granted. I remand this case to Connecticut Superior Court.
II.

Discussion
“In evaluating the propriety of a removal, courts start with the baseline principle that

federal courts are courts of limited jurisdiction.” Veneruso v. Mount Vernon Neighborhood Health
Center, 933 F. Supp. 2d 613, 618 (S.D.N.Y. 2013). Thus, “removal jurisdiction exists in a given
case only when that jurisdiction is expressly conferred on the courts by Congress.” Id. (internal
quotation marks omitted). Under “28 U.S.C. § 1441, a civil action filed in state court may be
removed by the defendant to federal district court if the district court has original subject matter

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Defendant A&J Farm Stand, LLC has not appeared in this action. Defendant Cuseo Family,
LLC has filed a motion to remand indicating that it does not, in fact, consent to removal. (ECF
No. 11.)
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jurisdiction over the plaintiff’s claim.” Lupo v. Human Affairs Intern., Inc., 28 F.3d 269, 271 (2d
Cir. 1994); see also 28 U.S.C. § 1441(a) (“Except as otherwise expressly provided by Act of
Congress, any civil action brought in a state court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant or the defendants, to the district court
of the United States for the district and division embracing the place where such action is
pending.”). “[T]he party asserting jurisdiction bears the burden of proving that the case is properly
in federal court.” United Food & Comm. Workers Union, Local 919, AFL-CIO v. CenterMark
Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). Because “statutory procedures for
removal are to be strictly construed,” courts “resolve any doubts against removability.” In re
Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007).
a. Diversity Jurisdiction
Mr. Cuseo first argues that the Court may exercise jurisdiction over this case on the basis
of diversity of citizenship. “Federal courts have original jurisdiction over civil actions” in which
diversity jurisdiction exists. MBIA Ins. Corp. v. Royal Bank of Canada, 706 F. Supp. 2d 380, 385
(S.D.N.Y. 2009). Diversity jurisdiction “exists over ‘civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens
of different States.” Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir. 2009) (quoting 28 U.S.C. §
1332(a)(1)). “Citizens of different States means that there must be complete diversity, i.e., that
each plaintiff’s citizenship must be different from the citizenship of each defendant.” Id. (internal
quotation marks omitted).
Cuseo claims in the Notice of Removal that Plaintiff does not reside in the same state as
Defendant Cuseo Family, LLC, which is now allegedly domiciled in Colorado. (ECF No. 1 at 12.)
Even so, Cuseo, whose address is listed on the docket as 1680 Post Road East, Westport,

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Connecticut, himself appears to be domiciled in Connecticut, destroying complete diversity.
Moreover, as a citizen of the state in which the action was brought, Cuseo may not remove the
action to federal court. See 28 U.S.C. § 1441(b)(2); see also Wells Fargo Bank, Nat’l. Ass. v. White,
No. 3:17-CV-858 (VAB), 2018 WL 650372, at *2 (D. Conn. Jan. 31, 2018) (remanding where the
defendant seeking removal was a Connecticut citizen). Because it is Cuseo’s burden to establish
removal jurisdiction and he has failed to do so on diversity grounds, diversity does not provide a
proper basis for federal jurisdiction.
b. Federal Question Jurisdiction
Mr. Cuseo next argues that the Court may exercise jurisdiction over this case on the basis
of a federal question. To show removal was proper on the basis of federal question jurisdiction, a
defendant must show that the plaintiff’s claims “arise[] under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. A claim arises under those laws if either (i) federal law
creates one of the causes of action asserted in the complaint, or (ii) Plaintiff’s claims fall in a “small
category” of cases where “a claim that finds its origins in state rather than federal law” raises a
“substantial” federal question. Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013). More specifically,
in the latter category, “federal jurisdiction over a state law claim will lie if a federal issue is (1)
necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal
court without disrupting the federal-state balance approved by Congress.” Id. at 1065. All four
requirements must be met for a case to fall into this “special and small category.” Id. at 1064-65.
“Under the ‘well-pleaded complaint rule,’ a defendant generally may not remove a case to federal
court unless the plaintiff’s complaint establishes that the case arises under federal law.” McCulloch
Orthopaedic Surgical Servs., PLLC v. Aetna Inc., 857 F.3d 141, 145 (2d Cir. 2017) (quoting Aetna
Health Inc. v. Davila, 542 U.S. 200, 207 (2004)).

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The complaint in this case alleges no causes of action created by federal law. Rather, the
complaint sought foreclosure of the Town’s property tax and sewer use liens under state law,
specifically, Connecticut General Statutes §§ 12-181 and 7-258. Therefore, whether federal
question jurisdiction exists in this case depends on whether Plaintiff’s case falls within the “special
and small category of cases,” id. at 1064, in which the Court must resolve “a substantial question
of federal law in dispute between the parties.” Franchise Tax Bd. of State of Cal. v. Constr.
Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13 (1983) (internal quotation marks and citations
omitted).
Cuseo claims that the foreclosure case in state court violated several of his constitutional
rights, thereby implicating 42 U.S.C. § 1983 (see ECF No. 1 at 12), and the federal CERCLA
because the property at issue sits on contaminated land. (ECF No. 1 at 9-11.) But Cuseo fails to
demonstrate that the Plaintiff’s complaint raises any of these federal questions or that the state law
claims raise a substantial question of federal law, and the complaint does not appear to do so.
Rather, these are Cuseo’s anticipated federal defenses to the foreclosure action, which do not give
rise to federal question jurisdiction under the well-pleaded complaint rule. See Franchise Tax Bd.,
463 U.S. at 14 (“[A] case may not be removed to federal court on the basis of a federal defense, .
. . even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that
the defense is the only question truly at issue in the case.”); Bank of America Nat’l. Ass. v. Derisme,
743 F. Supp. 2d 93, 102 (D. Conn. 2010) (granting a motion to remand a state foreclosure action
removed on the basis of an anticipated federal defense).
Even if Cuseo were to frame these alleged federal issues as counterclaims, they still would
not provide the federal court with jurisdiction. See Holmes Grp., Inc. v. Vornado Air Circulation
Sys., Inc., 535 U.S. 826, 832 (2002) (declining “to transform the longstanding well-pleaded-

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complaint rule into the ‘well-pleaded-complaint-or-counterclaim rule’”); Wells Fargo Bank, 2018
650372, at *3 (finding that the court lacked federal jurisdiction where a defendant in a state
foreclosure case removed the case on the grounds that the foreclosure proceedings violated her
rights under, inter alia, the Fourteenth Amendment, Seventh Amendment, and Section 1983).
Cuseo also fails to demonstrate that the foreclosure case necessarily raises any federal issue that
would be capable of resolution in federal court without disrupting the federal-state balance
approved by Congress, especially given that judgment has already entered in that case. The Court
therefore lacks federal question jurisdiction over this case.
III.

Conclusion
For the reasons discussed above, the motions to remand (ECF Nos. 8 and 11) are

GRANTED. Because the Court lacks jurisdiction over this case, I need not address whether the
Rooker-Feldman doctrine otherwise prevents the Court from exercising jurisdiction, whether the
lack of unanimity among the defendants prevents removal, or whether removal was timely.
Defendant Cuseo Family, LLC requests that the Court sanction Mr. Cuseo with a monetary
fine, but does not formally move for costs and expenses under 28 U.S.C. § 1447(c), and the parties
have not briefed the requirements for imposing costs under that provision. I therefore will not
impose a fine. Nonetheless, I note that Mr. Cuseo removed this case without a basis in law or fact.
He is therefore warned that further attempts to remove this case may result in monetary sanctions
under 28 U.S.C. § 1447(c).
IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated: Hartford, Connecticut
August 1, 2018
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