Bank of New York Mellon Corporation v. Kranyak et al

Filing 9

ORDER denying 8 Motion for Reconsideration. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BANK OF NEW YORK MELLON CORP.,
Plaintiff,
Case No. 12-12820
Hon. Lawrence P. Zatkoff

v.
BETH KRANYAK, and ALL OTHER OCCUPANTS
OF 17926 DEVONSHIRE COURT, NORTHVILLE, MI.,
Defendants.
/

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
I. INTRODUCTION
This matter is before the Court on Defendants’ Motion for Reconsideration [dkt 8]. Pursuant to
E.D. Mich. L.R. 7.1(h)(2), a response to Plaintiffs’ motion for reconsideration is not permitted.

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such, the Court finds that the facts and legal arguments are adequately presented in Defendants’ motion
and brief such that the decision process would not be significantly aided by oral argument. Therefore,
pursuant to E.D. Mich. L.R. 7.1(h)(2), and 7.1(f)(2), it is hereby ORDERED that the motion be
resolved on the brief submitted. For the reasons set forth below, Defendants’ motion is DENIED.
II. BACKGROUND
Defendants’ motion challenges the Court’s July 25, 2012, Order remanding the case to the 35th
District Court [dkt 5]. In its July 25, 2012, Order, the Court found that it lacked subject-matter
jurisdiction over the case since Defendant’s removal was improper pursuant to 28 U.S.C. § 1441(b)(2).
III. LEGAL STANDARD
Local Rule 7.1(h) governs motions for reconsideration, stating that “the court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled upon by the court,
either expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3). The same subsection further

states, “[t]he movant must not only demonstrate a palpable defect by which the court and the parties . . .
have been misled but also show that correcting the defect will result in a different disposition of the
case.” Id. A defect is palpable when it is “obvious, clear, unmistakable, manifest, or plain.” Chrysler
Realty Co., LLC v. Design Forum Architects, Inc., 544 F.Supp. 2d 609, 618 (E.D. Mich. 2008).
IV. ANALYSIS
Defendants’ motion for reconsideration fails to state a palpable defect by which the Court has
been misled. Rather, Defendants’ motion presents issues that the Court has already ruled upon. See
E.D. Mich. L.R. 7.1(h)(3). Further, the motion indicates only Defendants’ disagreement with the
Court’s ruling.

Such disagreement is not a proper premise on which to base a motion for

reconsideration. See, e.g., Simmons v. Caruso, No. 08-cv-14546, 2009 WL 1506851, at *1 (E.D. Mich.
May 28, 2009); Cowan v. Stovall, No. 2:06-CV-13846, 2008 WL 4998267, at *2 (E.D. Mich. Nov. 21,
2008).
Notwithstanding Defendants’ failure to adequately support their Motion, the Court will briefly
address Defendants’ argument. The Court additionally notes, however, that even if it has jurisdiction
over this case, remand is nevertheless appropriate based on the abstention doctrine set forth in Younger
v. Harris. See 401 U.S. 37 (1971).
1. 28 U.S.C. § 1441(b)(2)
Defendant argues that the Court’s remand under §1441(b)(2) was improper because the rule is
“procedural” not “jurisdictional” and therefore must be raised by the opposing party, not sua sponte by
the Court. The Court disagrees. Section 1441 provides that:
any 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, to the district court of the United States for
the district and division embracing the place where such action is
pending

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28 U.S.C. § 1441(a). The language of subsequent § 1441(b)(2), however, is unambiguous in stating
that “a civil action removed under this title on the basis of diversity may not be removed if any of the
parties in interest properly joined and served as defendants is a citizen of the State in which the action is
brought.” 28 U.S.C. § 1441(b) (emphasis added). Based on this language, the Court finds Defendants’
removal improper. See Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir.1999)
(“Statutes conferring removal jurisdiction are to be construed strictly because removal encroaches on a
state court’s jurisdiction”) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)).
The Court acknowledges that several courts that have addressed the question of whether §
1441(b)(2) is “procedural” or “jurisdictional” have concluded that the rule is procedural only, subject to
waiver in every case and not a proper basis for sua sponte remand. Sixth Circuit precedent, however, is
inconclusive on this issue. Cf. Handley-Mack Co. v. Godchaux Sugar Co., 2 F.2d 435, 437 (6th
Cir.1924) (exercising jurisdiction over appeal from a final judgment in a removed action even though
the case was “not technically removable under the statute”), with Thompson v. Karr, 182 F.3d 918,
1999 WL 519297 at *3-4 (6th Cir.1999) (table opinion) (exercising jurisdiction over appeal from order
granting summary judgment, but raising and addressing removal under § 1441(b)(2), sua sponte, “since
it relates to our jurisdiction”). As such, even though the result in Handley-Mack permits waiver,
suggesting that § 1441(b)(2) is “procedural,” the result in Thompson indicates that waiver is not
required in every case.
Therefore, the Court finds that remand to the 35th District Court was proper on the basis of
Defendants’ improper removal.

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2. Abstention Under Younger v. Harris
Based on the record, it appears that Plaintiff filed in state court seeking to evict Defendants after
expiration of the redemption period following the foreclosure on Defendants’ home. Given this, the
Court additionally finds remand proper so as to prevent interference with an ongoing state proceeding.
In Younger v. Harris, 401 U.S. 37, 44 (1971), the U.S. Supreme Court first affirmed the need
for federal courts to abstain from interfering with ongoing state criminal proceedings. While abstention
from jurisdiction is the exception, not the rule, there nevertheless are limited “classes of cases in which
a federal court should decline to exercise that jurisdiction.” Sun Refining & Marketing Co., 921 F.2d
635, 638-39 (6th Cir. 1990). “The Younger doctrine, in its original form, maintained that federal court
abstention is appropriate where, absent bad faith, harassment, or a patently invalid state statute, federal
jurisdiction has been invoked for the purpose of restraining state criminal proceedings.” Id. “At the
heart of the Younger doctrine are notions of comity and deference to state courts necessitated by our
federal system.” Id. The Supreme Court “has also made clear that the policies underlying the Younger
doctrine are fully applicable to state noncriminal judicial proceedings where important state interests
are involved.” Id. (citing Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423
(1982)).
The Supreme Court identified specific factors to be applied by this Court when determining
whether abstention is required. Those factors are: (1) whether the underlying proceedings constitute an
ongoing state judicial proceeding; (2) whether the proceedings implicate important state interests; and,
(3) whether there is an adequate opportunity in the state proceedings to raise a constitutional challenge.
Tindall v. Wayne County Friend of the Court, 269 F.3d 533, 538 (6th Cir. 2001).
As to the first factor, the eviction proceedings in the 35th District Court case are still being
litigated, and the key issue before this Court is the same as that now being litigated there—namely,

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whether Defendants are entitled to keep their home or whether they should be evicted. Second,
allowing Defendants to remove the case would require the Court to preempt the 35th District Court’s
jurisdiction to decide important state interests related to real property rights. Eviction and foreclosure
proceedings are generally handled by state courts, not federal courts, and the propriety of determining
whether a foreclosure and eviction are appropriate is a matter of state law, not federal law. Third,
Defendants will have an adequate opportunity in the ongoing state proceedings to raise any of the
challenges that they assert in this cause of action.
As such, the Court finds that the interests of justice weigh heavily in favor of allowing the
eviction proceedings to be addressed in the 35th District Court. Therefore, the Court concludes that
remand was proper, as the abstention doctrine compels this Court to abstain from interfering with the
ongoing proceedings in the 35th District Court.
V. CONCLUSION
Accordingly, and for the reasons set forth above, IT IS HEREBY ORDERED that Defendants’
Motion for Reconsideration [dkt 8] is DENIED.
IT IS SO ORDERED.
Date: August 24, 2012

s/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT

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