Wittstadt et al v. Dixon et al

Filing 9

MEMORANDUM Signed by Judge James K. Bredar on 12/30/2014. (cags, Deputy Clerk)

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MARK H. WITTSTADT
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SELECT PORTFOLIO SERVICING, INC.
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GERARD WILLIAM WITTST ATh1'f,"J,R,,---""Substitute Trustees

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Plaintiffs

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v.

DAVE LLEWELL YN DIXON
mLIANA KOFF A DIXON
Defendants

Civil Action No. JKB-14-3852

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*

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MEMORANDUM

On December 10, 2014, defendants, who are Maryland residents, filed a Notice of
Removal from the Circuit Court of Maryland for Howard County, Case No. 13CI4101405,
paying the filing fee and providing a civil cover sheet, the complaint, and documents relating to
the Circuit Court case (ECF Nos. 1 and 2), as well as an "Affidavit for Notice of Removal" (ECF
No.3) and an "Affidavit for Declaration of Bill of Rights." (ECF No.4).
There is no evidence that removal would be proper in this case.

S

Under 28 U.S.C.

1441(a), only actions "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."

See also Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The Circuit Court

complaint seeks foreclosure on a property occupied by defendants. Although defendants claim a
violation of the United States Constitution (Civil Cover Sheet, ECF No. I-I), the foreclosure
action concerns application of Maryland law. To the extent they exist, the defendants' federal

constitutional arguments are matters only raised in defense to the foreclosure suit, which clearly
does not rest upon federal-question jurisdiction.

"[S]ince 1887 it has been settled law that a case

may not be removed to federal court on the basis of a federal defense."

Constr. Laborers Vacation Trust, 463 U.S. 1, 14 (1983).

Franchise Tax Bd. v.

In this case, state law created the

causes of action, "and original federal jurisdiction is. unavailable unless it appears that some
substantial, disputed question of federal law is a necessary element of one of the well-pleaded
state claims, or that one or the other claim is 'really' one of federal law." Id. at 13. No question
of federal law is part of the plaintiffs'

claim in the foreclosure action, and federal-question

jurisdiction does not exist over it.
Defendants also invoke this court's diversity jurisdiction, but at least two of the plaintiffs
appear to reside in Maryland, as do the defendants, and an address is not provided for the
business entity. Thus, diversity jurisdiction does not exist.
Removal was improper, and the case shall be remanded by separate ordeLI

DATED this 30th day of December, 2014.

BY THE COURT:

lsi
James K. Bredar
United States District Judge

I

The Court's Standing Order Concerning Removal (ECF No.5) was issued in error and will be vacated.

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