MCCAULEY v. US NATIONAL BANK ASSOCIATION et al

Filing 17

CLOSED REMANDED to Marion Superior Court. Unterberg's motion for leave to file supplemental authority and defendant's motion to remand and for award of attorney's fees are GRANTED. Defendants are ordered to file an accounting of the reasonable attorneys' fees incurred as a result of this removal action within 14 days of the date of this Entry. Signed by Judge Tanya Walton Pratt on 7/7/2014 (dist made)(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DEREK MCCAULEY,
Plaintiff,
v.
US NATIONAL BANK ASSOCIATION as
trustee for Structure Asset Securities
Corporation Trust 2006-RF4, commonly
known as Wells Fargo Bank, N.A.,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS (MERS),
TRANSCONTINENTAL TITLE COMPANY,
UNTERBERG AND ASSOCIATES, PC,
GOODIN ABERNATHY, LLP,
PETERS AND STEEL, LLC,
DISCOVER PROPERTIES, LLC,
BLTREJV3, INDIANAPOLIS LLC,
PHILIP H. HERMAN,
MARY SMITH,
UNKNOWN OWNERS,
WELLS FARGO BANK N.A.,
Defendants.

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Case No. 1:14-cv-00260-TWP-DML

ENTRY ON MOTION TO REMAND
This matter is before the Court on the Motion to Remand and Award of Attorneys’ Fees
(Dkt. 5) filed by Defendants, US National Bank Association, as Trustee for Structured Asset
Securities Corporation Trust 2006-R-F4, commonly known as Wells Fargo Home Mortgage
(“Wells Fargo”), Mortgage Electronic Registration Systems, Inc. (“MERS”), and Unterberg and
Associates P.C. (“Unterberg”) (collectively, “Defendants”). Additionally Unterberg has filed a
Motion for Leave to File Supplemental Authority (Dkt. 16). Plaintiff, Derek Steven McCauley
(“Mr. McCauley”), commenced this action by filing a Complaint in the Marion Superior Court
against the Defendants. In a rather unusual action, Mr. McCauley later removed his case to

federal court; which triggered Defendants’ filing of the motions pending before the Court. For
the reasons set forth below, the Defendants’ Motions are GRANTED.
I. BACKGROUND
On October 14, 2013, Mr. McCauley filed a Complaint in the Marion Superior Court
seeking quiet title and other relief for damages he suffered from a foreclosure action, brought in
the Marion Superior Court by the Trustee in Cause No. 49D12-1004-MF-019634 and captioned
US Bank National Association, as Trustee for Structured Asset Securities Corporation Trust
2006-RF4 v. Derek McCauley et al. (Filing No. 6, at ECF p. 2). The state court judge ruled in
favor of the Trustee and ordered that the real property in question be sold and that Mr. McCauley
pay the Trustee $178,341.00, in addition to post-judgment interest. Mr. McCauley appealed this
decision and his appeal was denied on February 14, 2011. On July 17, 2013, the real property
was sold to BLTREJV3 Indianapolis, LLC at a sheriff’s sale.
On February 21, 2014, approximately five months after he commenced this action, and
on the same date as a hearing in Marion Superior Court 13 on Defendants’ motion to dismiss the
Complaint, Mr. McCauley filed a Notice of Removal to the United States District Court for the
Southern District of Indiana. Defendants “timely filed a Motion to Remand pursuant to 28
U.S.C.A § 1447(c), alleging a fatal procedural defect.” (Filing No. 6, at ECF p. 2).
II.

DISCUSSION

As an initial matter, Unterberg’s Motion for Leave to File Supplemental Authority in
Support of its Notice of Joinder on the Motion to Remand and for Award of Attorneys’ Fees.
(Dkt. 16) is GRANTED. Mr. McCauley has not objected or otherwise responded to the motion
and the supplemental authority is relevant to the issues before the Court. The Court will discuss
the remaining issues in turn.

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1.

The Motion to Remand
Mr. McCauley alleges that removal of this case to federal court is proper on the grounds

that his claim asserts a federal question, and that he has complied with procedural requirements,
pursuant to 28 U.S.C. §§ 1331, 1332, 1441 and 1446. Defendants argue that a plaintiff cannot
remove his own case to federal court, Mr. McCauley failed to meet the strict 30 day deadline set
forth in §1446(b), and that the Defendants are presumptively entitled to an award of attorney’s
fees and costs.1
A number of procedural defects make Mr. McCauley’s purported removal improper.
First, Mr. McCauley argues that this case can be removed as the federal court has original
jurisdiction because his claims involve federal statutes. While it is true that Mr. McCauley could
have originally filed his case in federal court on this basis, he instead chose to file his claims in
state court. Mr. McCauley now seeks to have his case heard in federal court and references
several statutes in support of removal; however, none of the statutes indicate that a plaintiff has
the authority to remove his own case. Rather, § 1441 states, “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.” 28 U.S.C. §1441 (emphasis added). Section 1446 outlines
the procedures with which the “defendant or defendants desiring to remove any civil action from
a State court” must comply. 28 U.S.C. §1446. Nowhere do the statutes vest authority in the
plaintiff for removal.
Second, Defendants argue that Mr. McCauley is not in compliance with the § 1446
deadline and procedures for removal. Section 1446(b)(2)(B) provides that notice of removal

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Defendants also argue that the Rooker-Feldman doctrine prohibits the Court from exercising subject matter
jurisdiction in this case. See Kelley v. Med-I Solutions, LLC, 548 F.3d 600, 603 (7th Cir. 2008), District of
Columbia Ct. of App. v. Feldman, 460 U.S. 462 (1983). However, the Court need not address the merits of this
argument due to the procedural deficiencies addressed below.

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must be filed within thirty days after the defendant receives a copy of the proceeding. Here, Mr.
McCauley filed his Complaint in October of 2013, and filed a notice of removal in February of
2014. Even if Mr. McCauley did have the authority to file a notice of removal, this case is far
past the deadline for removal set forth in § 1446.
Additionally, § 1446(b)(2)(A) states, “when a civil action is removed solely under section
1441(a), all defendants who have been properly joined and served must join in or consent to the
removal of the action.” 28 U.S.C. § 1446(b)(2)(A). Section 1446(d) requires that after filing a
notice of removal, “all adverse parties” shall be given notice. 28 U.S.C. §1446(d). Here, only
Defendants Wells Fargo, Unterberg, and MERS have been served with the notice of removal
(Filing No. 1-1, at ECF p. 2). Defendants Transcontinental Title Co.; Peters and Steel, LLC;
Discover Properties, LLC; BLTREJV3 Indianapolis, LLC; Phillip H. Herman; Mary Smith; and
“Unknown Owners,” have not been served with the notice of removal. The Seventh Circuit has
held that, “a petition filed by less than all of the named defendants is considered defective if it
fails to contain an explanation for the absence of co-defendants.” Illinois Gas Co. v. Airco Indus.
Gases, A Division Of Airco, Inc., 676 F.2d 270, 273 (7th Cir. 1982) (citations omitted). Mr.
McCauley did not include any explanation as to why he did not include or provide notice to the
other defendants in this case.
Accordingly, given Mr. McCauley’s status as a plaintiff, the untimeliness of the removal,
and the failure to notify and join all defendants, removal of his case to federal court is improper,
and the case must be remanded.
2.

Attorneys’ Fees
Defendants have requested an award of attorneys’ fees for the cost of the improper

removal. Section 1447 states that, “an order remanding the case may require payment of just

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costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28
U.S.C. §1447. Additionally, the Supreme Court has held that, “absent unusual circumstances,
courts may award attorney’s fees under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S.
132, 136 (2005). This Court takes into consideration that Mr. McCauley is litigating pro se, and
therefore may not be familiar with all of the procedural requirements of litigation. However, the
Seventh Circuit has held that, “attorney’s fees may be awarded to a prevailing defendant in a
frivolous action . . . even where the litigants are pro se.” Pryzina v. Ley, 813 F.2d 821 (1987)
(citations omitted); see also Pearle Vision v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) (“[P]ro se
litigants are not excused from compliance with procedural rules.”) (citing McNeil v. U.S., 508
U.S. 106, 113 (1993)). Here, Mr. McCauley violated multiple procedural requirements and
made a gross error in requesting that the case be removed to the District Court. Therefore, even
considering Mr. McCauley’s status as a pro se litigant, it is proper to award the Defendants
attorneys’ fees incurred as a result of the improper removal.
III. CONCLUSION
For the foregoing reasons, Unterberg’s Motion for Leave to File Supplemental Authority
(Dkt. 16) and Defendants’ Motion to Remand and for Award of Attorneys’ Fees. (Dkt. 5) are
GRANTED. This case is REMANDED to the Marion Superior Court.
Defendants are ordered to file an accounting of the reasonable attorneys’ fees incurred as
a result of this removal action within fourteen (14) days of the date of this Entry.

SO ORDERED.
07/07/2014
Date: __________________

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________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Derek McCauley
P.O. Box 29361
Indianapolis, Indiana 46229
Carl Anthony Greci
FAEGRE BAKER DANIELS
[e-mail]
Louis T. Perry
FAEGRE BAKER DANIELS LLP - Indianapolis
[e-mail]
Karl G Popowics
GOODIN ABERNATHY LLP
[e-mail]
Peter A. Velde
KIGHTLINGER & GRAY
[e-mail]

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