Federal Home Loan Mortgage Corporation v. Litano et al

Filing 28

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered: For the reasons stated, upon de novo review, the court hereby ADOPTS the Report and Recommendation (Dkt. No. 19 ). Based upon this, the court hereby ALLOWS Defendants Motion to Remand (Dkt. No. 11 ). This case is hereby ordered remanded to state court. Given the conflicting authority, the court will adopt the recommendation that Defendants request for attorneys fees pursuant to 28 U.S.C. § 1447(c) be denied. This case may now be closed. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
FEDERAL HOME LOAN MORTGAGE
CORPORATION,
Plaintiff
v.
JEFFREY D. LITANO, a/k/a
JEFFREY D.S. LITANO,
SARA DUPRAT,
Defendants

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C.A. No. 15-cv-10019-MAP

MEMORANDUM AND ORDER REGARDING
REPORT AND RECOMMENDATION RE:
DEFENDANT LITANO’S MOTION TO REMAND
(Dkt. Nos. 11 & 19)
June 1, 2015
PONSOR, U.S.D.J.
This litigation reveals a dubious practice on the part
of Plaintiff Federal Home Loan Mortgage Corporation, whereby
it will initiate a summary process proceeding against an
unrepresented party in the state court, then immediately
seek to remove the case to federal court if that party
retains counsel, resists the eviction, and asserts
counterclaims.

Plaintiff has attempted this removal

stratagem here, and Defendant Litano has filed a Motion to
Remand.

Dkt. No. 11.

The motion was referred for Report and Recommendation
to Magistrate Judge Katherine A. Robertson, and on March 30,
2015, Judge Robertson issued her recommendation to the

effect that the motion should be allowed.

Plaintiff filed a

timely objection, and the issues raised by the motion to
remand are now before this court for de novo review.
Given the scrupulousness of Judge Robertson’s analysis,
it is unnecessary to re-plow the ground she has covered.

As

both parties acknowledge, the issue of Plaintiff’s
entitlement to remove this matter -- after filing it in
state court in the first place -- has generated conflicting
case law, none of it at the Circuit level.
Recommendation, Dkt. 19, at 4-5.
argument, however, favors remand.

See Report and

The more powerful
Allowing removal in these

circumstances would not only countenance blatant forum
shopping, but would place Plaintiff, in the words of Judge
Robertson, “in a uniquely privileged position with regard to
removal. . . .”

Id. at 5.

Moreover, acceptance of Plaintiff’s argument would run
counter to the general principle that, where a case has been
brought in state court originally, only a defendant
possesses the right to seek removal.

See 28 U.S.C. § 1441.

Like Judge Robertson, this court finds more persuasive the
statutory analysis set forth in Fed. Home Loan Mortg. Corp.
v. Shaffer, 2:14-cv-1690-WMA, 2014 WL 7180777(N.D. Ala. Dec.
17, 2014) and Fed. Home Loan Mortg. Corp. v. Amersey, No.
13-13753, 2014 WL 1400086 (E.D. Mich. April 9, 2014).
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Plaintiff’s reliance upon the removal provision of the
FDIC chartering statute, 12 U.S.C. § 1819(b)(2)(B), is
equally unavailing.

Plaintiff argues that because the

Eleventh Circuit has allowed the FDIC to remove as a state
court plaintiff, FDIC v. S & I 85-1, Ltd., 22 F.3d 1070,
1073-74 (11th Cir. 1994), its interpretation of the
analogous statute at issue here is not unprecedented.

But

the District of Massachusetts has taken a less favorable
view of the FDIC statute.

In FDIC v. Massachusetts

Commissioner of Revenue, 1992 WL 249687 (D. Mass. 1992),
Judge Keeton noted, in rationale that applies equally here,
that Congress could only have intended for the FDIC to
remove when it was substituted as a plaintiff, not when it
filed in state court.

If not, Congress would have granted

the governmental entity the tactical advantage of “seek[ing]
a second forum only after perceiving a likelihood of failure
in the forum of its initial selection.”

Id. at *3.

While the alternative argument supporting remand -abstention -- is strong, it is not necessary to rely upon it
here as a justification for remand.

Nevertheless, it is

worth noting that summary process litigation is
traditionally a state court matter.
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State courts undeniably

have far more experience than federal courts with the
procedural and substantive niceties of eviction practice.
For this reason, absent the strong statutory-based argument,
the court might well conclude that abstention would be
appropriate here under Burford v. Sun Oil Co., 319 U.S. 332
(1943), and its progeny.
For the foregoing reasons, upon de novo review, the
court hereby ADOPTS the Report and Recommendation (Dkt. No.
19).

Based upon this, the court hereby ALLOWS Defendant’s

Motion to Remand (Dkt. No. 11).
remanded to state court.

This case is hereby ordered

Given the conflicting authority,

the court will adopt the recommendation that Defendant’s
request for attorney’s fees pursuant to 28 U.S.C. § 1447(c)
be denied.

This case may now be closed.

It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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