Bassi v. Krochina, et al
Filing
16
ORDER denying 14 Motion to Strike 12 Surreply to Reply ; granting 7 Motion to Remand to State Court. CASE REMANDED to Belknap County Superior Court. No costs or fees awarded to either party. (Case Closed). So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Benjamin Bassi, Trustee
of the Marsha A. Bassi
Revocable Trust
v.
Civil No. 12-cv-39-JD
Opinion No. 2012 DNH 079
Christopher John Krochina
O R D E R
Benjamin Bassi, Trustee of the Marsha A. Bassi Revocable
Trust, brought a petition to quiet title in Belknap County
Superior Court in September of 2011.
After the non-diverse
parties were dismissed from the action and the state court denied
his request for a jury trial, defendant Christopher Krochina,
proceeding pro se, removed the action to this court.
Bassi moves
to remand, and Krochina objects to the motion.
Bassi filed a reply, and Krochina filed a surreply.
Bassi
moves to strike the surreply on the grounds that it is untimely
and extraordinary circumstances are lacking.
I.
Krochina objects.
Motion to Strike
Bassi contends that Krochina’s notice of intent to file a
surreply and the surreply were not timely filed under the local
rules.
Bassi also contends that Krochina’s surreply does not
meet the required extraordinary circumstances.
Krochina defends
the timeliness and substance of his surreply.
A.
Timeliness
Bassi filed a reply on March 21, 2012.
Krochina provided
oral notice of his intent to file a surreply on March 28, 2012,
and his written notice was filed on March 30, 2012.
Krochina
filed the surreply, without first seeking leave to do so, on
April 6, 2012.
A pro se party, such as Krochina, is required to comply with
applicable procedural rules.
Eagle Eye Corp. v. U.S. Dep’t of
Commerce, 20 F.3d 503, 506 (1st Cir. 1994); McGee v. Benjamin,
2012 WL 959377, at *11 n.12 (D. Mass. Mar. 20, 2012); Horstkotte
v. Comm’r, N.H. Dep’t of Corrs., 2009 WL 4907025, at *6 (D.N.H.
Dec. 11, 2009).
Under the local rules of this district, written
or oral notice of an intent to file surreply must be provided to
the court and opposing counsel within three days of service of
the objection.
LR 7.1(e)(1) & (3).
The time is enlarged to six
days under Federal Rule of Civil Procedure 6(a) & (d) to provide
time for service of the reply.
LR 6.1.
Oral notice provided by
Krochina on March 28 was one day late, and written notice filed
on March 30 was three days late.
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A motion for leave to file a surreply, with the proposed
surreply attached, must be filed within fourteen days of service
of the reply.
LR 7.1(3).
Krochina filed a surreply on April 6
without a separate motion for leave, although the surreply begins
with a request that the court accept it.
Even if the surreply
were deemed to include a motion for leave to file, it was filed
two days late.
Although the reply was filed on March 21 with a
certification that a copy had been sent to Krochina by first
class mail, Krochina represents that he did not receive Bassi’s
reply until March 27.1
Krochina argues that because he was not
served with the reply until March 27, his notice and surreply
were timely.
Krochina also argues that he satisfied the
requirement of seeking leave to file a surreply by asking the
court to accept the surreply without a separate motion.
As
presented, Krochina has not shown that he complied with the local
rules pertaining to filing a surreply.
1
Krochina did not provide an affidavit or evidence of the
postmark date to support his representations of when he received
the reply.
3
B.
Substance
Bassi also argues that Krochina’s surreply does not present
extraordinary circumstances as required by LR 7.1(d)(3).
In
support of the surreply, Krochina asserts that Bassi’s reply
includes “several misstatements and/or distortions of the factual
record” and that the surreply is necessary “to address and
correct the plaintiff’s misstatements.”
In addition, Krochina
accuses Bassi of not being honest with the court and labels the
motion to strike as “just another malicious and frivolous tactic
to try and suppress incriminating evidence and to increase the
costs of this litigation.”
The court has reviewed the reply and surreply and concludes
that Krochina’s attacks on Bassi are unjustified.
Instead,
Krochina’s arguments about the value of the quiet title action
demonstrate his misunderstanding of the rights at issue in the
case.
However, the arguments and evidence Krochina provides in his
surreply do not change the outcome.
Therefore, despite the
procedural and substantive irregularities, the court will not
strike the surreply.
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II.
Motion to Remand
Bassi moves to remand the case on the grounds that
Krochina’s notice of removal was untimely, that the amount in
controversy requirement for diversity jurisdiction has not been
shown, and that federal question jurisdiction is lacking.
Krochina objects, arguing that his notice was timely filed after
the nondiverse parties were dismissed from the case, that the
value of the property far exceeds the amount in controversy
requirement, and that federal question jurisdiction exists
because he claims a due process right to federal court
jurisdiction.
Because the jurisdictional issue is dispositive,
the timeliness issue need not be addressed.2
A.
Background
The petition to quiet title pertains to a small parcel of
land on Lake Winnipesaukee known as “Lot 2a” and an
“unconstructed” extension of Evergreen Lane referred to as
“Evergreen Extension.”
In the petition, Bassi states that
2
Krochina argues that his notice was timely filed and
suggests that Bassi improperly joined nondiverse parties to avoid
federal jurisdiction. To the extent Krochina relies on improper
joinder, he did not meet his burden to show that Bassi improperly
joined nondiverse parties. See, e.g., Geva Eng’g Crp., Corp. v.
Furmanite Am., Inc., --- F. Supp. 2d ---, 2012 WL 593530, at *3
(D.P.R. Feb. 24, 2012); Moore v. NovaStar Mtg. Inc., 2011 WL
2899418, at *2, n.3 (D. Mass. July 15, 2011).
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Krochina claims a right to use Lot 2a and a right to cross
Bassi’s property as if Evergreen Lane extended across Lot 2a as
Evergreen Extension.
Bassi maintains that Lot 2a and Evergreen
Extension are not subject to a right of use by Krochina or anyone
else.
In October of 2011, all of the defendants except Krochina
waived or disclaimed any interest in Lot 2a and Evergreen
Extension.
Bassi then filed a motion for judgment as to the
uninterested parties and sent a copy to Krochina on November 3,
2011.
The state court held a conference on January 5, 2012, to
address the case schedule, the motion, and other matters.
Krochina requested a jury trial.
Following the hearing, the
court dismissed the uninterested defendants, set the case
schedule, and denied Krochina’s request for a jury trial.
Krochina filed a notice of removal in this court on February 3,
2012.
B.
Jurisdiction
A civil case may be removed to federal court from state
court when the federal court has original jurisdiction.
U.S.C. § 1441(a).
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Federal jurisdiction must be based on either a
federal question under 28 U.S.C. § 1331 or diversity of
citizenship under 28 U.S.C. § 1332.
6
Krochina claims both grounds
for jurisdiction.
As the removing party, Krochina bears the
burden of showing that jurisdiction exists.
Pruell v. Caritas
Christi, 645 F.3d 81, 84 (1st Cir. 2011).
1.
Federal Question Jurisdiction
Federal question jurisdiction under § 1331 includes two
types of actions.
The first type is a direct federal question
“in which the plaintiff pleads a cause of action that has its
roots in federal law.”
P.R. Tel. Co., Inc. v. SprintCom, Inc.,
662 F.3d 74, 86 (1st Cir. 2011).
The second type involves
“embedded federal questions . . . in which the plaintiff pleads a
state-law cause of action, but that cause of action necessarily
raises a stated federal issue, actually disputed and substantial,
which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial
responsibilities.”
Id. (internal quotation marks omitted).
In his notice of removal, Krochina stated that federal
question jurisdiction existed based on his Seventh Amendment
right to a jury trial.
For purposes of objecting to Bassi’s
motion to remand, Krochina argues that federal question
jurisdiction exists based on “a due process right to be equally
protected by the law before an impartial Judge and/or Jury.”
Because Bassi did not plead a federal cause of action, federal
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question jurisdiction would exist only if Bassi’s cause of action
raises a disputed and substantial federal issue.
Bassi filed a petition to quiet title in state court, naming
as defendants the town and individuals who owned property near
Lot 2a and Evergreen Extension.
Although Krochina claims a right
to a jury trial in the quiet title action under the Seventh
Amendment, he has not shown that he has raised a viable Seventh
Amendment issue for purposes of federal question jurisdiction.
See, e.g., Taylor v. Lybrand, 2011 WL 3703520, at *4 (D.S.C. Aug.
2, 2011); Fed. Nat’l Mtg. Ass’n v. Avendano, 2010 WL 4963027, at
*5 (N.D. Ga. Oct. 28, 2010); James-Clement v. Lending Connection,
Inc., 2008 WL 417993, at *2 (E.D. Wash. Feb. 13, 2008).
Similarly, Krochina’s asserted due process right is not
sufficiently supported.
Therefore, Krochina has not carried his burden to show that
federal question jurisdiction exists in this case.
2.
Diversity Jurisdiction
Krochina also claims that diversity jurisdiction exists
under § 1332.
Bassi contends that the amount in controversy
requirement under § 1332(a) is not met in this case.
Krochina
argues that the amount in controversy requirement is met.
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Jurisdiction exists to hear and determine cases between
citizens of different states when the amount in controversy
exceeds $75,000.
§ 1332(a).
The party who removes a case based
on diversity of citizenship bears the burden of showing that the
amount in controversy requirement is satisfied.
See NFS Leasing,
Inc. v. Hill, 2012 WL 527854, at *2 (D. Mass. Feb. 17, 2012);
Williams v. Litton Loan Servicing, 2011 WL 3585528, at *5 (D.
Mass. Aug. 15, 2011).
To satisfy that burden, Krochina must show
a “reasonable probability” that the amount in controversy exceeds
$75,000.
Gomes v. Midland Funding, LLC, --- F. Supp. 2d ---,
2012 WL 733886, at *2 (D. Mass. Mar. 5, 2012).
The matter in question in the quiet title action is the
right to use a corner of Bassi’s property, Lot 2a, and the right
to cross Bassi’s property on Evergreen Extension.
The petition
to quiet title does not seek damages or state an amount in
controversy.
In the notice of removal, Krochina stated only that
“the amount of the controversy in this case is well in excess of
$75,000" without providing any factual basis for the statement.
Therefore, the value is not apparent on the face of the
pleadings.
In support of his objection to Bassi’s motion, Krochina
provides some evidence of the value of Lot 2a and argues, based
on those figures, that the value of Lot 2a is far in excess of
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$75,000.
Krochina provides additional evidence of the value of
the property in support of his surreply.3
The property interest
raised by the quiet title action, however, is a right to use Lot
2a, not to own it.
Therefore, evidence of the value of the
property is not relevant to the matter in controversy.
Instead,
the pertinent value is the right to use property that is owned by
someone else.
Krochina provides no evidence of the value of his
claimed right to use Lot 2a and Evergreen Extension.
In support of the motion to remand, Bassi provides evidence
that Krochina sold Lot 2a in 1996 for $23,400, and reasons,
persuasively, that Krochina’s alleged right to use Lot 2a is
worth less than the sale value of the property.
Bassi also
provides evidence that in 2010 he acquired an adjacent
landowner’s interest in Evergreen Extension for $4,000.
Based on
that information, the total value of the right to use Lot 2a and
Evergreen Extension would be considerably less than $75,000.
Therefore, based on the record presented, Krochina has not
carried his burden of showing that the amount in controversy
exceeds $75,000.
As a result, the court lacks diversity
3
Krochina attempts to calculate the value of Lot 2A based on
his estimate of the value of lake-front property. He also
disputes Bassi’s right to certain property. Krochina’s arguments
and calculations are not persuasive.
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jurisdiction.
In the absence of subject matter jurisdiction, the
case must be remanded to state court.
C.
28 U.S.C. § 1447(c).
Award of Fees and Costs
Bassi asks for an award of the fees and costs that he has
incurred in seeking a remand.
As part of an order remanding a
case to state court, a federal court “may require payment of just
costs and any actual expenses, including attorney fees, incurred
as a result of the removal.”
§ 1447(c).
An award of fees and
costs is appropriate, however, “only where the removing party
lacked an objectively reasonable basis for seeking removal.”
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
While acknowledging Krochina’s pro se status, Bassi contends
that Krochina’s attempt to remove a different case to this court
in 2006, shows that Krochina was familiar with the legal
requirements for removal, including the jurisdictional
requirements.
Bassi argues that no reasonable basis existed to
support federal question jurisdiction and that Krochina should
have known, based on past transactions pertaining to the
property, that the amount in controversy does not exceed $75,000.
Krochina responds by stating that he had a reasonable basis for
removal and that he is entitled to fees and costs incurred in
opposing the motion to remand.
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Although Krochina has not sustained his burden of showing
federal question jurisdiction or the jurisdictional amount
necessary for diversity jurisdiction, the court is not persuaded
that he lacked an objectively reasonable basis for seeking
removal, particularly considering his pro se status.
Krochina’s
prior experience with removal ended when the court remanded the
case in an endorsed order, which cannot be construed to have
provided Krochina with sufficient instruction on the removal
process and federal jurisdiction to make his removal in this case
objectively unreasonable.
The court notes, however, that
Krochina is now on notice of the stringent jurisdictional
requirements for removal.
Bassi’s request for an award of fees
and costs is denied.
Conclusion
For the foregoing reasons, the plaintiff’s motion to strike
(document no. 14) is denied.
The plaintiff’s motion to remand
(document no. 7) is granted under § 1447(c) due to a lack of
subject matter jurisdiction.
No costs or fees are awarded to
either party.
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The case is remanded to Belknap County Superior Court.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 3, 2012
cc:
Christopher John Krochina, pro se
Patricia M. Panciocco, Esquire
Jennifer L. Parent, Esquire
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