WELLS FARGO BANK, NA v. HARRINGTON et al

Filing 15

OPINION AND ORDER adopting the report and recommendation of Magistrate Judge Mannion granting pltf's motion to remand action to Superior Court of New Jersey, Essex County. Signed by Judge Esther Salas on 12/27/2013. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
WELLS FARGO BANK, N.A.,
:
:
Civil Action No. 13-2679 (ES)
Plaintiff,
:
:
MEMORANDUM
v.
:
OPINION & ORDER
:
FLOYD E. HARRINGTON, et al.,
:
:
Defendants.
:
__________________________________________:
SALAS, DISTRICT JUDGE
Pending before the Court is plaintiff Wells Fargo Bank, N.A.’s (“Plaintiff” or “Wells
Fargo”) motion to remand this action to the Superior Court of New Jersey, Essex County,
Chancery Division. (D.E. No. 8). This Court referred Plaintiff’s motion to the Honorable Steven
C. Mannion, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B).

On

September 5, 2013, Magistrate Judge Mannion issued a Report and Recommendation (the “R &
R”) that the undersigned grant Plaintiff’s motion and remand this matter accordingly. (D.E. No.
11). Judge Mannion advised the parties that they had fourteen days to file and serve any
objections to the R & R pursuant to Local Civil Rule 72.1(c)(2). (Id. at 7).
On September 19, 2013, pro se defendant Heidi Harrington (“Defendant” or “Ms.
Harrington”) filed a document titled “Plaintiff’s/State Court Defendant’s Affirmation and
Opposition to the Defendant’s/State Court Plaintiff’s Motion to Remand.” (D.E. No. 12 (“Def.
Objection”)). In this submission, Ms. Harrington asserts that “Defendants vehemently oppose[]
and object[] to the remanding of this matter,” and the Court therefore construes this submission
as an objection to Judge Mannion’s R & R. (Id. at 14). For the reasons set forth below, the

Court adopts Magistrate Judge Mannion’s R & R and GRANTS Plaintiff’s motion to remand.
“When a litigant files an objection to a Report and Recommendation, the district court
must make a de novo determination of those portions to which the litigant objects.” Leonard
Parness Trucking Corp. v. Omnipoint Commc’ns, Inc., No. 13-4148, 2013 WL 6002900, at *2
(D.N.J. Nov. 12, 2013) (citing 28 U.S.C. § 636(b)(1)(A), Fed. R. Civ. P. 72(b), and L. Civ. R.
72.1(c)(2)).
With respect to removal of actions from state court to federal court, 28 U.S.C. § 1446
(b)(1) provides that
[t]he notice of removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant, through service
or otherwise, of a copy of the initial pleading setting forth the
claim for relief upon which such action or proceeding is based, or
within 30 days after the service of summons upon the defendant if
such initial pleading has then been filed in court and is not required
to be served on the defendant, whichever period is shorter.
(emphasis added). “The burden of proof is on the removing party to show removal was timely.”
FDIC v. Wissel & Sons Constr. Co., 881 F. Supp. 119, 122 (D.N.J. 1995). “If there is any doubt
as to the propriety of removal, that case should not be removed to federal court.” Brown v.
Francis, 75 F.3d 860, 865 (3d Cir. 1996). Notably, “[f]ailure to file a notice of removal within
the time period provided by the removal statutes is a sufficient basis for remand.” Eyal Lior v.
Sit, 913 F. Supp. 868, 874 (D.N.J. 1996).
The Court provides the background of this action in summary fashion because Judge
Mannion provided the relevant factual and procedural background in the R & R. (D.E. No. 11 at
1-5). On August 28, 2008, Wells Fargo brought an action for foreclosure against Floyd E.
Harrington and Ms. Harrington in the Superior Court of New Jersey, Essex County, Chancery

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Division. (D.E. No. 8-1, Ex. A).1 On December 23, 2009, the state court issued a final judgment
in favor of Wells Fargo. (Id. at Ex. C). On April 26, 2013, over three years after final judgment
was issued in state court, Ms. Harrington filed a notice of removal resulting in the instant action
before this Court. (D.E. No. 1).
Ms. Harrington argues that, as an “[e]xception to the 30 day requirement for [r]emoval,”
this “[r]emoval is [t]imely because the Court has both [o]riginal and [d]iversity jurisdiction.”
(Def. Objection at 5 (citing 28 U.S.C. §§ 1337, 1446(b); 15 U.S.C §§ 1601, 1692). But the issue
is whether Ms. Harrington properly removed this action in terms of procedure. Notwithstanding
her status as a pro se litigant, the Court cannot ignore the clear statutory time limitations for
removal and extend her time to remove an action from 30 days to several years after an
unfavorable state court judgment. See Steel Valley Auth. v. Union Switch & Signal Div., 809
F.2d 1006, 1010 (3d Cir. 1987) (“It is settled that the removal statutes are to be strictly construed
against removal and all doubts should be resolved in favor of remand.”); Silverman v. China
Nat’l Native Produce & Animal By-Prods. Import & Export Corp., No. 06-1710, 2007 WL
518605, at *4 (W.D. Pa. Feb. 12, 2007) (“As with all of the statutory prerequisites for federal
courts’ exercise of removal jurisdiction, the time limitations of section 1446(b) must be strictly
observed, and the burden of establishing the timeliness of a removal petition is on the removing
party.”).
To be sure, Ms. Harrington raises several other issues in her objection to Judge
Mannion’s R & R, including: the injury requirement for standing, (Def. Objection at 2-3); the
1
More specifically, Wells Fargo’s state court complaint listed the following defendants: “Floyd E. Harrington,
his/her heirs, devisees, and personal representatives, and his, her, their or any of their successors in right, title and
interest; Heidi Harrington, his/her heirs, devisees, and personal representatives, and his, her, their or any of their
successors in right, title and interest; Mrs. Floyd E. Harrington; Mr. Harrington, Husband of Heidi Harrington.”
(D.E. No. 8-1, Ex. A).

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Rooker-Feldman doctrine, (id. at 4); failure to properly effect service resulting in a void
judgment, (id. at 5-6); arguments relating to the implications of a void judgment, (id. at 6-11);
arguments relating to violations under 18 U.S.C. §§ 1962 & 1964, (id. at 11-13); and arguments
relating to subject matter jurisdiction and other issues involving 11 U.S.C. § 362 and the Fair
Debt Collections Practices Act, (id. at 13-14). These other issues, however, do not concern the
unequivocal procedural defect in Ms. Harrington’s removal—i.e., removing the action from state
court several years after final judgment was rendered by the state court. The Court agrees with
Judge Mannion, (see D.E. No. 11 at 7 n.5), that the Court need not make a finding as to whether
the instant action involves federal subject matter jurisdiction because, as discussed above,
Section 1446 (b)(1) and relevant case law mandate the Court to remand this action on procedural
grounds.
The Court has reviewed Defendant’s objection, as well as Magistrate Judge Mannion’s R
& R, and for the reasons stated above and in Judge Mannion’s R & R,
IT IS on this 27th day of December 2013,
ORDERED that this Court adopts Magistrate Judge Mannion’s Report and
Recommendation, (D.E. No. 11), as the Opinion of this Court; and it is further
ORDERED that Plaintiff’s motion to remand, (D.E. No. 8), is GRANTED; and it is
further
ORDERED that this matter is hereby REMANDED to the Superior Court of New Jersey,
Essex County, Chancery Division; and it is further

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ORDERED that the Clerk of Court shall mark this case CLOSED.

s/Esther Salas
Esther Salas, U.S.D.J.

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