Ward v. Mustafa et al

Filing 15

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 5/29/2015. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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CARRIE M. WARD, ET AL.,
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Plaintiffs,

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Case No.: GJH-15-708

v.

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ZESHAN K. MUSTAFA, ET AL.,
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Defendants.
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MEMORANDUN OPINION
On or around February 5, 2015, Plaintiffs Carrie M. Ward, Howard N. Bierman, Jacob
Geesing, and PennyMac, Corp. (collectively, “Plaintiffs”) filed an in rem foreclosure proceeding
against Defendants Zeshan Mustafa, Kamal Mustafa, and Fatima Mustafa (collectively,
“Defendants”) in the Circuit Court for Montgomery County, Maryland following Defendants’
default on a promissory note. See ECF No. 2. Defendants removed that case to this Court on
March 13, 2015. See ECF No. 1. On April 13, 2015, Plaintiffs filed a motion to remand to the
Circuit Court for Montgomery County, Maryland. See ECF No. 8. For the reasons stated more
fully below, the Court will GRANT Plaintiffs’ motion to remand.
Federal Courts are courts of limited jurisdiction, and a district court must remand any
case in which it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); see In Re Blackwater
Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006). Therefore, a party seeking adjudication
in federal court must “demonstrate the federal court’s jurisdiction over the matter.” Strawn v. AT
& T Mobility, LLC, 530 F.3d 293, 296 (4th Cir. 2008) (internal citation omitted). “Where a
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defendant seeks to remove a case to federal court, the defendant must simply allege subject
matter jurisdiction in his notice of removal.” Cunningham v. Twin City Fire Ins. Co., 669
F.Supp.2d 624, 627 (D.Md.2009). “But if the plaintiff challenges removal in a motion to remand,
then the burden is on the defendant to ‘demonstrat[e] that removal jurisdiction is proper.’” Id.
(citing Strawn v. AT & T Mobility, LLC, 530 F.3d 293, 296 (4th Cir. 2008)). Here, Defendants
have not met their burden of demonstrating that removal was proper because, despite
Defendants’ contention, the Court lacks both diversity jurisdiction and federal question
jurisdiction.
District courts have jurisdiction over civil actions where the matter in controversy
exceeds $75,000 and is between citizens of different states. See 8 U.S.C. § 1332(a)(1). For
diversity jurisdiction to exist, however, there must be “complete diversity,” meaning that “no
party shares common citizenship with any party on the other side.” Mayes v. Rapoport, 198 F.3d
457, 461 (4th Cir. 1999) (internal citation omitted). Here, there is a lack of complete diversity as
Defendants and several of the plaintiffs are from Maryland. Specifically, Plaintiffs Ward,
Bierman, and Geesing are attorneys and trustees with their principal place of business located at
6003 Executive Blvd., Suite 101, Rockville, Maryland, 20852. See ECF No. 8-1 at 8. Similarly,
Defendants are domiciled in Maryland as they reside at 114406 Autumn Branch Terrace, Boyds,
Maryland, 20841. See ECF No. 14 at 3. The parties therefore are not completely diverse. As a
result, this action lacks diversity jurisdiction and removal based on diversity was
improper. See Mayes, 198 F.3d at 461 (“the ‘complete diversity’ rule clarifies that the statute
authorizing diversity jurisdiction over civil actions between a citizen of a state where the suit is
brought and a citizen of another state permits jurisdiction only when no party shares common
citizenship with any party on the other side”).
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The same is true of Defendants’ attempt to remove this case based on federal question
jurisdiction. Federal question jurisdiction arises only from “those cases in which a well-pleaded
complaint establishes either that federal law creates the cause of action or that the plaintiff’s right
to relief necessarily depends on resolution of a substantial question of federal law.” Franchise
Tax Bd. of the State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28
(1983). This case involves no such causes of action; rather, this case is an in rem foreclosure
proceeding arising under Maryland state law, involving property located in Maryland. See Wells
Fargo Home Mortg., Inc. v. Neal, 398 Md. 705, 726 (2007) (“This ‘power of sale’ foreclosure is
‘intended to be a summary, in rem proceeding’ which carried out ‘the policy of Maryland law to
expedite mortgage foreclosures.’”). While Defendants’ notice of removal and opposition to
Plaintiffs’ motion to remand reflects that Defendants may be contemplating filing counterclaims
based on federal law, for removal purposes, the Court looks only to the complaint to determine
whether a federal question is presented. See Franchise Tax Bd., 463 U.S. at 10 (“For better or
worse, under the present statutory scheme . . . a defendant may not remove a case to federal court
unless the plaintiff’s complaint establishes that the case ‘arises under’ federal law.” (emphasis in
original)); see also Martin Pet Products (U.S.), Inc. v. Lawrence, 814 F.Supp. 56, 58 (D. Kan.
1993) (rejecting argument that damages requested in counterclaim may be considered in
establishing amount in controversy because “[t]he counterclaim had not been filed at the time of
removal and cannot serve as a basis for later establishing this court's jurisdiction”). Because
Plaintiffs have not pled any federal causes of action in their complaint, the Court lacks federal
question diversity. Removal on this ground was therefore improper.1

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Defendants also cite 28 U.S.C § 1442 as a basis for removal. This statute governs suits against,
and prosecutions of, Federal agencies and Federal officers. Defendants, however, do not fall
within either category. Accordingly, removal under 28 U.S.C § 1442 was also improper.
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Having failed to demonstrate this Court’s jurisdiction over this matter, the Court must
remand this action to the Circuit Court for Montgomery County, Maryland for further
proceedings. As such, the Court will GRANT Plaintiffs’ motion to remand, ECF No. 8, and will
DENY Defendants’ motion for leave to file surreply as unwarranted. See Loc. R. 105.2(a) (Md.)
(“Unless otherwise ordered by the Court, surreply memoranda are not permitted to be filed.”).

Dated: May 29, 2015

/S/
George J. Hazel
United States District Judge

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