Federal National Mortgage Association v. Borak et al
Filing
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ORDER granting 4 Motion to Remand; denying 5 Borak's Motion to Strike; denying as moot 13 Fannie Mae's Motion to Strike. So Ordered by Chief Judge Joseph N. Laplante.(dae)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Federal National Mortgage
Association
v.
Civil No. 11-cv-542-JL
Gary P. Borak
SUMMARY ORDER
The Federal National Mortgage Association (“Fannie Mae”)
commenced this possessory action in Plaistow District Court
against Gary P. Borak and other “unknown occupants” of certain
real property in Danville, New Hampshire, which Fannie Mae claims
to have purchased at a foreclosure sale.
Borak, proceeding pro
se, responded by filing a notice of removal of the action to this
court on November 29, 2011.
See 28 U.S.C. § 1446(a).
On December 1, 2010, Fannie Mae filed a motion to remand the
action to the state court, see id. § 1447(c), arguing that,
because Borak is a citizen of New Hampshire, the action is not
removable, see id. § 1441(b).
Section 1441(b) provides that:
Any civil action of which the district courts have
original jurisdiction founded on a claim or right
arising under the Constitution, treaties or laws of the
United States shall be removable without regard to the
citizenship or residence of the parties. Any other
such action shall be removable only if none of the
parties properly joined and served as a defendant is a
citizen of the State in which such action is brought.
(emphasis added).
Though Borak admits little else (including the very
existence of Fannie Mae, its counsel of record, or even this
action), he does admit to being a citizen of New Hampshire.
There is also no question that Borak has been “properly joined
and served as a defendant.”
Though Borak also denies these
things, he repeatedly gives his address (in his filings in both
this court and elsewhere) as the very property of which Fannie
Mae seeks possession, so he is “properly named” as a defendant to
its possessory action, see N.H. Rev. Stat. Ann. § 540:12, and the
state-court record contains a certification from a deputy sheriff
that he served Borak by leaving a copy of the state-court process
at his abode, so he was “properly served,” see id. § 510:2.
Thus, because a “citizen of the State in which [this] action was
brought,” New Hampshire, has been “properly named and served as a
defendant,” this action is not removable under § 1441(b).
The only way § 1441(b) would not prevent removal here would
be, as the statute says, if this were a “civil action of which
the district courts have original jurisdiction founded on a claim
or right arising under the Constitution, treaties or laws of the
United States” under 28 U.S.C. § 1331.
But it is not:
it is an
action for possession of real property under state law.
In fact,
Borak’s notice of removal expressly invokes this court’s
diversity jurisdiction, see id. § 1332(a)(1), rather than its
2
federal question jurisdiction.
While the notice also makes
reference to “violations against the civil and constitutional
rights” of Borak, that reference is not explained in anything
filed with this court and, regardless, federal constitutional
claims by a defendant do not confer federal jurisdiction anyway.
See Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535
U.S. 826, 831 (2002).
Borak’s claim that the state district
court “has not the sophistication, the capacity, or expertise in
law to comprehend this proceeding,” even if it had any basis,
would also not establish federal jurisdiction.
See, e.g.,
Haywood v. Drown, 129 S. Ct. 2108, 2120-21 (2009).
Finally, Fannie Mae’s motion for remand was made within 30
days after the filing of Borak’s notice of removal, as required
by 28 U.S.C. § 1447(c).
While Borak has moved to strike the
remand motion, he does not articulate any basis for doing so
(instead, he insinuates that proceedings in the state district
court have continued even after he removed the action here, but
the certified state-court record, which he submitted, does not
bear that out, and this court fails to see what effect that would
have on the validity of Fannie Mae’s remand motion anyway).
Accordingly, Fannie Mae’s motion to remand (document no. 4)
is GRANTED, Borak’s motion to strike (document no. 5) is DENIED,
and Fannie Mae’s motion to strike the motion to strike (that is
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not a typo; document no. 13) is DENIED as moot.
The clerk of
court shall remand this action to the Plaistow District Court.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
December 20, 2011
cc:
Charles W. Gallagher, Esq.
Christopher J. Fischer, Esq.
Gary P. Borak, pro se
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