LESLIE v. BEECH WOOD HART VENTURES, LLC et al

Filing 9

MEMORANDUM OPINION & ORDER, that the action be, and the same hereby is, REMANDED to the New Jersey Superior Court, Chancery Division, Burlington County. Signed by Judge Noel L. Hillman on 7/13/15. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BRIAN LESLIE,
Plaintiffs,

CIVIL NO. 15-4424(NLH)(JS)

v.
BEECH WOOD HART VENTURES,
LLC, et al.,

MEMORANDUM
OPINION & ORDER

Defendants.

HILLMAN, District Judge
This matter having come before the Court by way of its sua sponte
review of defendants’ notice of removal, Zambelli Fireworks Mfg. Co.,
Inc. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010) (“Federal courts are
courts of limited jurisdiction, and when there is a question as to our
authority to hear a dispute, ‘it is incumbent upon the courts to
resolve such doubts, one way or the other, before proceeding to a
disposition on the merits.’”); and
Defendants having removed plaintiff’s complaint from New Jersey
Superior Court, Chancery Division, Burlington County; and
Plaintiff having filed a foreclosure complaint against defendants
because of defendants’ alleged default on their mortgage; and
Defendants contending that this Court has jurisdiction over the
matter pursuant to 28 U.S.C. § 1331 because their counterclaims and

third-party complaint 1 arise under federal law, including violations of
the Real Estate Settlement Procedures Act (12 U.S.C. § 2601 et seq.)
(“RESPA”), among other federal laws; but
The Court noting that removal of a case from state to federal
court is governed by 28 U.S.C. § 1441, and § 1441 is to be strictly
construed against removal, so that the Congressional intent to restrict
federal jurisdiction is honored, Samuel–Bassett v. KIA Motors America,
Inc., 357 F.3d 392, 396 (3d Cir. 2004) (citing Boyer v. Snap–On Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990)); and
The Court also noting, “The presence or absence of federalquestion jurisdiction is governed by the ‘well-pleaded complaint rule,’
which provides that federal question jurisdiction exists only when a
federal question is presented on the face of the plaintiff’s properly
pleaded complaint,” Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (“The rule makes the plaintiff the master of the claim; he or
she may avoid federal jurisdiction by exclusive reliance on state
law.”); and
The Court further noting that it is well-settled that “a

1

It appears that defendants filed their answer, counterclaims, and
third-party complaint in this Court after removal. Whether any
third-party defendant could remove that piece of the case based on 28
U.S.C. § 1331 is questionable. See Target Nat. Bank v. Campanella,
2013 WL 5284929, *1 (D.N.J. 2013) (discussing the propriety of
removing a third-party complaint that was part of a state court
foreclosure action based on federal question jurisdiction). That
issue is not currently before the Court.
2

counterclaim - which appears as part of the defendant's answer, not as
part of the plaintiff's complaint - cannot serve as the basis for
‘arising under’ jurisdiction,” Holmes Group, Inc. v. Vornado Air
Circulation Systems, Inc., 535 U.S. 826, 831-32 (2002) (explaining that
“[a]llowing a counterclaim to establish ‘arising under’ jurisdiction
would [] contravene the longstanding policies underlying our
precedents,” as “[i]t would allow a defendant to remove a case brought
in state court under state law, thereby defeating a plaintiff's choice
of forum, simply by raising a federal counterclaim”); and
The Court therefore finding that defendants’ removal of
plaintiff’s complaint based on 28 U.S.C. § 1331 is improper, see also
Green Tree Servicing LLC v. Dillard, --- F.3d ---, 2015 WL 849044
(D.N.J. 2015) (dismissing removed foreclosure complaint for lack of
subject matter jurisdiction despite defendants’ contention that the
litigation would require the consideration of disputed federal
questions because the face of the plaintiff's complaint did not
identify any federal question); but
The Court also recognizing that defendants contend that removal
under 28 U.S.C. § 1332(a) is proper because diversity of citizenship
exits between the parties; and
Defendants stating that plaintiff is a citizen of Pennsylvania and
defendants are citizens of New Jersey; but
Section 28 U.S.C. § 1441(b)(2) providing, “A civil action
3

otherwise removable solely on the basis of the jurisdiction under
section 1332(a) of this title 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 such action is brought”; and
Defendants identifying themselves as citizens of New Jersey 2 (see
Notice of Removal, Docket No. 1 at 3 ¶ 5), and they are therefore
barred from removing their case to federal court based on the forum
defendant rule;
Accordingly,
IT IS HEREBY on this

13th

day of

July

, 2015

ORDERED that the action be, and the same hereby is, REMANDED
to the New Jersey Superior Court, Chancery Division, Burlington
County.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey

2

The citizenship of defendant Beech Wood Hart Ventures, LLC is not
properly identified because its members have not been identified, see
Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 418 (3d Cir.
2010) (in a case in which a party to the action is a limited
liability company, the citizenship of an LLC is determined from the
citizenship of each of its members), but it is clear that the
individual defendants, by their own averments, are citizens of New
Jersey.
4