Federal National Mortgage Association v. Estate of Bonnie Matulka, et al.
Filing
11
MEMORANDUM AND ORDER - IT IS ORDERED: The plaintiff's motions to remand (No. 4:13-cv-3049 filing 10, No. 4:13-cv-3050 filing 10, No. 4:13-cv-3051 filing 9, No. 4:13-cv-3052 filing 9, No. 4:13-cv-3053 filing 9, No. 4:13-cv-3054 filing 9) are gr anted. These actions are remanded to the District Court of Lancaster County, Nebraska. The plaintiff shall be awarded costs and expenses, including attorney fees, upon the filing of a bill of costs pursuant to NECivR 54.1 and a motion for attorney fees pursuant to Fed. R. Civ. P. 54(d)(2) and NECivR 54.3. Member Cases: 4:13-cv-03049-JMG-CRZ et al.Ordered by Judge John M. Gerrard. (TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Plaintiff,
4:13-CV-3049, 4:13-CV-3051,
4:13-CV-3052, 4:13-CV-3053
MEMORANDUM
AND ORDER
vs.
ESTATE OF BONNIE MATULKA, et
al.,
Defendants.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
4:13-CV-3050, 4:13-CV-3054
Plaintiff,
MEMORANDUM
AND ORDER
vs.
ROBERT T. MADEJ, et al.,
Defendants.
These cases are before the Court on the plaintiff's motions to remand
(No. 4:13-cv-3049 filing 10, No. 4:13-cv-3050 filing 10, No. 4:13-cv-3051 filing
9, No. 4:13-cv-3052 filing 9, No. 4:13-cv-3053 filing 9, No. 4:13-cv-3054 filing
9). For the following reasons, those motions will be granted.
The plaintiff filed its state court complaints (filing 1-11)1 on July 7,
2011, alleging various claims for relief arising out of the Nebraska Trust
Deeds Act, Neb. Rev. Stat. § 76-1001 et seq. The defendants answered (filing
1-19) on September 26, contesting the plaintiff's allegations and
counterclaiming for quiet title and injunctive relief. Eventually, the plaintiff
moved for summary judgment, on December 3, 2012. Filing 1-23. A hearing
on the motions was scheduled for December 17. Filing 1-23. The defendants
As the caption reflects, there are actually several consolidated cases here. The pleadings
and procedural posture of the cases are substantially indistinguishable, so for the sake of
simplicity and convenience, the Court will generally cite to the pleadings in the "lead case,"
No. 4:13-cv-3049. See filing 7.
1
moved to continue the hearing (filing 1-24), and it was then scheduled for
January 23, 2013. Filing 1-26. On the defendants' motion the hearing was
continued again, until February 22. Filing 1-27 at 5. That hearing was
continued because of weather until March 4. Filing 1-27 at 5. At the March 4
hearing, the defendants moved for yet another continuance, but that motion
was overruled, and the plaintiff's summary judgment motions were taken
under advisement. Filing 1-27 at 5. The defendants filed a notice of removal
to federal court on March 19. Filing 1.
In response to a briefing order from this Court on the subject of
jurisdiction, the plaintiff has filed a brief which it asks the Court to consider
as a motion to remand.2 Filing 10. The plaintiff's claims are state law claims,
filed in state court. The defendants removed these actions from state to
federal court pursuant to 28 U.S.C. § 1441, which allows a defendant to
remove a case from state to federal court if, among other things, there is
diversity of citizenship among the parties or if the case involves a federal
question. But neither ground provides a basis for removal here.
Specifically, § 1441(b) allows a defendant to remove a case from state to
federal court based on diversity of citizenship provided no defendant "is a
citizen of the State in which such action is brought." § 1441(b)(2); see also
Caterpillar Inc. v. Lewis, 519 U.S. 61, 62 (1996). The defendants are residents
of Nebraska, filing 1 at 2, and the suit was filed in Nebraska state court.
Therefore, the defendants are unable to remove this case to federal court
based on diversity.
Additionally, the Court has original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. So, § 1441(a) allows a party to remove a claim which arises
under federal law. However, whether a claim arises under federal law must
be determined by reference to the well-pleaded complaint, and "[a] defense
that raises a federal question is inadequate to confer federal jurisdiction."
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). The
defendants allude to a federal question, a due process defense, in their notice
of removal. Filing 1. But because the federal question is not housed in the
well-pleaded complaint, the Court does not have federal question
jurisdiction.3
And of course, even before the motions were filed, the Court had an obligation to consider
its subject matter jurisdiction sua sponte where there was a reason to suspect that such
jurisdiction was lacking. See Hart v. United States, 630 F.3d 1085, 1089 (8th Cir. 2011).
2
The Court notes, for the sake of completeness, that the purported due process question at
issue seems to be a general complaint about the constitutionality of § 76-1010 of the
Nebraska Trust Deeds Act. Of course, § 76-1010 (and the rest of the Nebraska Trust Deeds
Act) has been implicated in these proceedings from the beginning. Yet it does not appear
3
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The plaintiff also contends that removal was improper because it was
untimely. Filing 10 at 2-4. That argument is likely correct, but the Court
need not reach it given the discussion above. The plaintiff also suggests that
the state court has decided these cases in the meantime. Filing 10 at 4. The
Court notes that because these cases were not properly removed, the rulings
of the state court in the interim are not void for lack of jurisdiction. See,
Metro. Cas. Ins. Co. v. Stevens, 312 U.S. 563, 566 (1941); Stuart v. Bank of
Staplehurst, 78 N.W. 298, 299 (Neb. 1899).
The Court also notes that pursuant to 28 U.S.C. § 1447(c), "[a]n order
remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal." The
Court may award attorney fees under § 1447(c) where the removing party
lacked an objectively reasonable basis for seeking removal. Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005). The Court can find no
objectively reasonable basis for seeking removal here, and the record strongly
supports an inference that removal was an attempt by the defendants to
delay the litigation. See id. at 140. Accordingly, the Court will award costs
and expenses, including attorney fees, upon the filing of a bill of costs
pursuant to NECivR 54.1 and a motion for attorney fees pursuant to Fed. R.
Civ. P. 54(d)(2) and NECivR 54.3. The plaintiff is also directed to the fee
application guidelines contained in NECivR 54.4, and should take care (given
the nature of this litigation) to carefully note what costs and expenses were
"incurred as a result of the removal." See § 1447(c).
IT IS ORDERED:
1.
The plaintiff's motions to remand (No. 4:13-cv-3049 filing
10, No. 4:13-cv-3050 filing 10, No. 4:13-cv-3051 filing 9, No.
4:13-cv-3052 filing 9, No. 4:13-cv-3053 filing 9, No. 4:13-cv3054 filing 9) are granted.
2.
These actions are remanded to the District Court of
Lancaster County, Nebraska.
that due process was asserted as a defense in the state court proceedings, nor is there any
apparent reason why the issue was not raised before the defendants' notice of removal. The
most obvious explanation is that it is a belated attempt to justify an untimely and
unfounded removal to federal court. But because a defense does not suffice to confer federal
question jurisdiction in any event, the Court need not conclusively determine whether any
due process question was appropriately presented or preserved.
-3-
3.
The plaintiff shall be awarded costs and expenses,
including attorney fees, upon the filing of a bill of costs
pursuant to NECivR 54.1 and a motion for attorney fees
pursuant to Fed. R. Civ. P. 54(d)(2) and NECivR 54.3.
Dated this 18th day of June, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge
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