O'Sullivan v. Cade et al

Filing 12

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 6/29/2016. (c/m 6/29/16)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LAURA H.G. O’SULLIVAN.,
Plaintiff,
v
ERIC CADE,
DORIS D. CADE,
Defendants.

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Civil Action No. RDB-16-1768

MEMORANDUM OPINION
On May 31, 2016, Eric Cade,1 a self-represented litigant, filed notice to remove an in rem
foreclosure proceeding, case number 24-O-13-003240, from the Circuit Court for Baltimore
City, Maryland. (ECF No. 1). On June 28, 2016, Plaintiff Laura O’Sullivan, by her counsel,
filed a Motion to Remand this matter as improperly removed. (ECF No. 10). For the reasons to
follow, this Court will GRANT the Motion to Remand.
BACKGROUND
The state foreclosure case involves real property known as 139 North Edgewood Street,
Baltimore, Maryland 21229. Cade also seems to name in this action substitute trustees under the
deed of trust secured against the real property. (ECF 1). The foreclosure action was filed in the
Circuit Court for Baltimore City on August 26, 2013. See http://casesearch.courts.state.md. us/
casesearch/ inquiryByCaseNum.jis.
The foreclosure sale was held on June 3, 2016, and resulted in the sale of the property to
the Noteholder, Christina Trust, a division of Wilmington Savings Fund Society, FSB, as trusts
for Sunset Mortgage Loan Trust, Series 2014-1. (ECF No. 10, 11). Plaintiff states Cade has not
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The Notice of Removal was filed only by Eric Cade. (ECF No. 1, 3).

filed any recent motions in the Circuit Court for relief as to the Order to Docket Suit, as
permitted by Md. Rule 14-211 or 14-305, nor has that Court entered any order staying the
foreclosure sale. (ECF No. 10).
While the arguments presented in the notice of removal are difficult to discern and
sometime unintelligible, Cade, who is a self-represented litigant, appears to assert the Circuit
Court has or had no authority to hear the foreclosure action. He maintains generally that the
“Circuit Court for Baltimore City has limited jurisdiction to hear, prosecute, or bring any case
against him” under the Federal Rules of Civil Procedure 4(j), 12(b)(1)-(6) and the Fourth, Fifth,
Ninth, Tenth, Eleventh, and Fourteenth Amendments of the Constitution because he is “not
subject to a Foreign State.” (ECF No. 1 at 1). Cade also mentions the Fair Debt Collections
Practices Act, 15 U.S.C. §1692, sovereign and state immunity, and the rights of Americans in
foreign states in the Notice of Removal to seemingly support his contention the Circuit Court
lacks authority over the foreclosure. Cade maintains the state foreclosure action “must be vacated
for lack of in rem, in personam jurisdiction, territorial and subject matter jurisdiction, as well as
for improper venue, as well as pursuant to the 11th Amendment Foreign State Immunity.” (ECF
1 at 8).
DISCUSSION
As a threshold matter, Cade’s removal of the foreclosure proceeding was untimely. A
proceeding must typically be removed within 30 days of the receipt of the initial pleading by the
defendant. 28 U.S.C. § 1446 (b). When a defendant fails to timely remove a case, the right to
remove is forfeited. See McKinney v. Bd. of Trustees of Mayland Cmty. Coll., 955 F.2d 924, 925
(4th Cir. 1992). Here, removal occurred more than two years after the action commenced and is
untimely. Moreover, Cade does not assert good cause for untimely removal.

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Even if removal were timely, Cade does not assert grounds for this court to exercise
jurisdiction over this case. Under 28 U.S.C § 1441(a), “a 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.” Federal district courts “have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States,” pursuant to 28
U.S.C. § 1331, as well those “where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between—(1) citizens of different States,”
pursuant to 28 U.S.C. § 1332(a). The burden of demonstrating jurisdiction, and the propriety of
removal, rests with the removing party. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815 (4th Cir.
2004). “[F]ederal courts are courts of limited jurisdiction, [and] should construe removal statutes
narrowly, [with] any doubts ... resolved in favor of state court jurisdiction.” Barbour v. Int'l,
Union, 640 F.3d 599, 617 (4th Cir. 2011) (en banc) (abrogated in part other grounds). “[B]efore
a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the
court.” Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006).
“Because removal jurisdiction raises significant federalism concerns, [courts] must
strictly construe removal jurisdiction.” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148,
151 (4th Cir. 1994) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941));
see also Cohn v. Charles, 857 F.Supp.2d 544, 547 (D. Md. 2012) (“Doubts about the propriety of
removal are to be resolved in favor of remanding the case to state court.”). Cade, the party
invoking removal jurisdiction, bears the burden of showing removal is proper. Mulcahey, 29
F.3d at 151 (“The burden of establishing federal jurisdiction is placed upon the party seeking
removal.”). “If federal jurisdiction is doubtful, a remand is necessary.” Id.

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“[A] claim of federal question jurisdiction is to be resolved on the basis of the allegations
of the complaint itself.” Burgess v. Charlottesville Sav. and Loan Assoc., 477 F.2d 40, 43 (4th
Cir. 1973). Therefore, a complaint must contain allegations affirmatively and distinctly
establishing federal grounds not in mere form, but in substance and not in mere assertion, but in
essence and effect. Id. (citing Cuyahoga Co. v. Northern Ohio Co., 252 U.S. 388, 397 (1920)).
“[T]he mere assertion in a pleading that the case is one involving the construction or application
of the federal laws does not authorize the District Court to entertain the suit.” Burgess, 477 F.2d
at 42 (citing Malone v. Gardner, 62 F.2d 15, 18 (4th Cir. 1932)).
Cade does not specify on what basis this Court has jurisdiction over this case. (ECF No.
1). Further, Plaintiff asserts that Cade did not raise constitutional or federal claims in the state
foreclosure proceeding, and even if he had pled these alleged violations as affirmative defenses
or counterclaims in the state action, they fail to give rise to federal question jurisdiction, because
“‘the federal question must be presented by plaintiff's complaint as it stands at the time the
petition for removal is filed...It is insufficient that a federal question has been raised as a matter
of defense or as a counterclaim.’” Herman v. Lincoln Nat'l Life Ins. Co., 842 F. Supp. 2d 851,
853 (D. Md. 2012) (quoting Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326–
27 (5th Cir. 1998) (citing 14 C. Wright & A. Miller, Federal Practice and Procedure § 3722, at
557)). Therefore, this Court does not have federal question jurisdiction. See 28 U.S.C. § 1331a.
Further, Plaintiff maintains no diversity of citizenship exists between the parties and
“upon information and belief all parties reside in Maryland.” (ECF No. 10). Therefore, this
Court does not have diversity of the party’s jurisdiction. See 28 U.S.C. § 1332.
For these reasons, this Court concludes there is no basis exists for federal question or
diversity jurisdiction.

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CONCLUSION
Accordingly, the Court shall remand this case to the Circuit Court for Baltimore City. A
separate Order follows.

_June 29, 2016___
Date

________/s/________________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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