Fisher et al v. Cathey

Filing 66

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/22/2016. (kw2s, Deputy Clerk)(c/m 3.23.16)

FILED
IN THE UNITED STATES DISTRICT COtilltfRi~nrrl~Tf\~~~~,TN
FOR THE DISTRICT OF MARYLAND
D
Southern

Division

lOlb MAR22 P I: 51

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CLER1~'SOiTIC~

JEFFREY B. FISHER, et al.,

AT G:;~EI;:'ELT

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Plaintiffs,

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v.

Case No.: G.JH.15.1357

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KIMMY R. CATHEY,

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Defendant.

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MEMORANDUM OPINION
On July. 23. 2013. the above-captioned matter was commenced in the Circuit Court for
Prince George's County. Maryland by the tiling of an Order to Docket Suit in the foreclosure of
a deed of trust granted by Defendant Kimmy R. Cathey and secured by real property located in
Prince George's County in a case captioned Fisher. e/ a/.. Subs/i/u/e hus/ees \'. ea/hey. No.
CAEF13-21010 (the ''Foreclosure Action"). The Foreclosure Action is based on a state statute
addressing deeds of trust. mortgages. and other liens in det[llllt. See Md. Code. Real Prop .. Art. ~
7.105.1 e/ seq. Plaintiffs in the Foreclosure Action unsuccessfully attempted to serve Cathy with
notice of the action on September 13. 15. 17. and 18. 2013. ECF No. 36.5. On December 17.
2013, Cathey was sent a Final Loss Mitigation Affidavit. which triggered her right to request
foreclosure mediation. See ECF No. 36-1: Md. R. Prop. Sales ~ 14-209.1. On January 8. 2014.
Cathey filed a request for foreclosure mediation. and she attended a mediation session on March
4.2014. See ECF No. 36.1. Cathey made additionaltilings

in the Foreclosure Action. including

two motions to stay the proceedings. one of which was denied on August 13.2014. and one
which was not ruled upon because. on May 11. 2015. Cathey removed the Foreclosure Action to

this Court. See hi.; ECF No.1. In response to this Court's Standing Order Concerning Removal.
Cathey indicated that she was served with a copy of the Order to Docket Residential Foreclosure
on July 23. 2013. ECF No. 24. In her Notice of Removal. Cathey represented that removal of the
Foreclosure Action was proper because this Court has federal question jurisdiction under 28
U.S.c.

S

1441(c)(I)(A). ECF No. I at'i 3.

Federal Courts are courts of limited jurisdiction. and a district courlmust remand any
case in which it lacks subject matter jurisdiction. See 28 U.S.c.

S

1447(c): In He Blac!<:ll'lller ec.
S

Consulling. 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:' Slr(l\l'/I \'. AT &
T Mohility. UC 530 FJd 293. 296 (4th Cir. 2008) (citation omitted). "Where a defendant seeks
to remove a case to federal court. the defendant must simply allege subject matter jurisdiction in
[her] notice of removal:' Cunningham \'. Twin Cily Fire IllS. Co.. 669 F.Supp.2d 624. 627 (D.
Md. 2009). "But if the plaintifTchallenges

removal in a motion to remand. then the burden is on

the defendant to 'demonsfral[e} that removal jurisdiction is proper'"

Id. (citing Slr(l\l'n. 530 F.3d

at 296). Here. Cathey has not met her burden of demonstrating that removal was proper because.
despite her contention otherwise. the Court lacks both federal question and diversity jurisdiction.
Federal question jurisdiction arises only li'om "those cases in which a well-pleaded
complaint establishes either that federal law creates the cause of action or that the plaintiffs right
to relief necessarily depends on resolution of a substantial question of fcderal law:' Franchise
Tax Bd. oflhe Slale of Cal.
.
.

I'.

ConSlr. Lahorers Va('({lion husl .fiJI' S. Cal.. 463 U.S. 1.27-28.

103 S. Ct. 2841 (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 Morlg. Inc. ". Neal. 922 A.2d 538. 550 (Md. 2007) ("This

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'power of sale' foreclosure is 'intended to be a summary. in rcm procceding' which carricd out
'the policy of Maryland law to expedite mortgage forcclosurcs. '''). In her opposition to
Plaintiffs' motion to remand. Cathey citcs provisions of the Fair Debt Collcction Practices Act.
IS U.S.C. ~~1692 et seq.. see ECF No. 42 at

'i 12. and she has tiled a "Counter

Complaint"

alleging violations of that statute, among other claims, see ECr No. 43. But for removal
purposes, the Court looks only to thc complaint. or in this casco thc Ordcr to Dockct Suit. to
determine whcther a federal question is prcscntcd. See Franchise Tax Bd. 463 U.S. at 10 ("For
better or worsc. under the prescnt statutory schcmc ... a dcfendant may not removc a case to
federal court unless the plaill1!tTs complaint establishcs that the casc 'arises under' federal law:'
(emphasis in original»; see also flolllles Gli) .. fnc.

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lfornado Air Circlll(J/ioll.":v.~ .. fIlC., 535

U.S. 826, 831. 122 S. Ct. 1889 (2002) ("[A] countcrclaim-which
defendant's answer. not as part of the plaintiff s complaint~annot
under' [federal question] jurisdiction:').

appcars as part of thc
serve as thc basis for .arising

Bccause the Foreclosurc Action. as instituted by

Plaintiffs, only involves a state law proceeding. and docs not involve any federal causes of
action, the Court lacks federal question diversity. Removal on this ground was therefore
Improper.
The same is true of any attempt to remove this action based on diversity jurisdiction.
District courts have jurisdiction over civil actions where the matter in controversy exceeds
$75,000 and is between citizens of ditferent states. See 8 U.S.c. ~ 1332(a)( I ). For di\'Crsity
jurisdiction to exist. however, there must bc "complete diversity," meaning that "no party shares
common citizenship with any party on the other side." Mayes \'. Rapoflort. 198 F.3d 457. 461
(4th Cir. 1999) (internal citation omitted). Here. there is a lack of completc divcrsity as it is

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undisputed that Cathy and all Plaintiffs are citizens of Maryland. See ECF No. 36 at 6. As a
result, this Court lacks diversity jurisdiction and remand is necessary.
Because Cathey has failed to demonstratc this Court"sjurisdiction

over this malter, the

Court must remand this action to the Circuit Court for Prince George's County, Maryland for
further proceedings.l As such, the Court will GRANT Plaintiffs' motion to remand. ECF No. 36,
and will DENY all other pending motions as moot. See Eel" Nos. 44, 51. 53. 54. 55. 57. and 59.

Dated: March

-zL.. 2016
GEORGE J. HAZEL
United States District Judge

I The Court also notes that Cathey's
removal of this case was untimely as she did not remove the case to this Court
within thirty days "after the receipt by the defendant. through service or otherwise. ora copy oflhe initial pleading
setting forth the claim for relief' as is required by 28 U.S.C. ~ t446 (b)( t). AlJhough Cathey was not personalty
served. such personal service is not required by the Maryland la\\"s governing the Foreclosure Action. See Md. Code
Ann., Reat Prop. ~ 7-1 05.1(h)(5): Md. R. Prop. Sales ~ 14-209(b). For this additional reason then. the COUl1will

remand the case to the Circuit Court for Prince George's

County. Maryland. least

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