Bank of America, N.A. v. Swartz et al
Filing
4
MEMORANDUM OPINION & ORDER: that this matter is REMANDED to Bath Circuit Court. Signed by Judge Joseph M. Hood on 4/20/15.(KJR)cc: COR, Bath Circuit Court
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
BANK OF AMERICA, N.A.
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JEFFREY SWARTZ, et al.,
Civil Case No.
5:15-cv-96-JMH
MEMORANDUM OPINION AND ORDER
Defendants.
***
This matter is before the Court upon its own motion.
While
no party has moved to remand this matter to state court, it is
incumbent upon the Court to ensure that it has subject matter
jurisdiction over removed cases.
lacks
subject
matter
shall be remanded.
The Court concludes that it
jurisdiction
and,
accordingly,
the
case
See 28 U.S.C. § 1447(c); see also Fed. R.
Civ. P. 12(h)(3).
In May 2013, Bank of America, N.A. (“BANA”) filed this
action
Circuit
as
a
foreclosure
Court.
counterclaim,
Jeffrey
alleging
proceeding
Swartz
various
in
filed
claims
Bath
a
County,
timely
under
state
Kentucky
answer
and
law.
In
February 2015, Swartz filed an amended counterclaim in which he
added a claim against BANA pursuant to the Fair Credit Reporting
Act, 15 U.S.C. § 1681,
et seq.
On March 30, 2015, BANA’s
foreclosure claim against Swartz was dismissed—thus, the only
remaining claims were Swartz’s counterclaims against BANA.1
BANA
removed the action to this Court on April 10, 2015.
BANA argues that removal is proper pursuant to 28 U.S.C.
Sections 1441 and 1331 because the parties have been “realigned”
and BANA is now the defendant in what has become a federalquestion case.
Relying on Terry v. Jackson, 19 F. App’x 377
(6th Cir. 2001), BANA contends that this outcome is correct
because jurisdiction is determined by the parties’ status at the
time of removal.
BANA relies on a mere snippet from Terry,
however, and it is taken out of context in BANA’s notice of
removal.
Terry
concerns
fraudulent
joinder
jurisdiction case, which is not at issue here.
in
a
diversity-
The Terry case,
in turn, references the oft-cited Rogers v. Wal-Mart Stores, 230
F.3d 868 (6th Cir. 2000), which concerns amount in controversy
as determined at the time of removal, which also is not at issue
here.
Ultimately, the removal statute is to be construed strictly
and all doubts should be resolved in favor of remand.
Shupe v.
Asplundh Tree Expert Co., 566 F. App’x 476, 478 (6th Cir. 2014).
BANA attempts to remove its own lawsuit to federal court, which
is impermissible, no matter how creative the attempt.
See La
1
On April 14, 2015, this Court received a telephone message from Judge Maze
of the Bath County Circuit Court reporting that, following BANA’s removal of
this case to federal court, the Bath County Circuit Court vacated its
previous order dismissing BANA’s foreclosure claim against Swartz.
2
Chemise Lacoste v. Alligator Co., Inc., 506 F.2d 339, 343 n.4
(3d
Cir.
claims
1974).
began
life
Further,
as
a
BANA’s
Fair
counterclaim
Credit
and,
as
Reporting
this
Court
stressed, counterclaims cannot form the basis for removal.
Act
has
See
Park Equine Hosp., PLLC v. Braugh, 5:13-cv-100, 2013 WL 2406093,
at *3 (May 30, 2013 E.D. Ky.); see also Double D Ranch, LLC v.
Jackson, 5:04-cv-88 (Dec. 2, 2005 E.D. Ky).
Accordingly,
IT
IS
ORDERED
that
REMANDED to Bath County Circuit Court.
This the 20th day of April, 2015.
3
this
matter
is
hereby
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?