WELLS FARGO BANK, NA v. HARRINGTON et al

Filing 7

REPORT AND RECOMMENDATIONS re 3 MOTION to Remand on an Expedited Basis filed by WELLS FARGO BANK, NA Objections, if any, to R&R due by 4/22/2014. Signed by Magistrate Judge Michael A. Hammer on 4/8/2014. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WELLS FARGO BANK, N.A.,
Civil Action No. 14-1158 (ES)
Plaintiff,
v.
FLOYD E. HARRINGTON, et al.,
Defendants.

REPORT AND
RECOMMENDATION

This matter is presently before the Court on the motion of Plaintiff, Wells Fargo Bank,
N.A., to remand the action to the Superior Court of New Jersey, Chancery Division, Essex
County. ECF No. 3. The motion is opposed by pro se Defendant Heidi Harrington. Pursuant to
Local Civil Rule 72.1(a)(2), the Honorable Esther Salas, U.S.D.J., referred the instant motion to
the Undersigned for a Report and Recommendation. The Court considered this motion without
oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth herein,
the Undersigned respectfully recommends that the District Court grant Plaintiff’s motion and
remand this matter to the Superior Court of New Jersey.

RELEVANT FACTS & PROCEDURAL HISTORY
On August 28, 2008, Plaintiff filed a three-count Complaint for foreclosure against
defendants Floyd E. Harrington, Heidi Harrington, and their heirs, devisees, personal
representatives and successors, in the Superior Court of New Jersey, Chancery Division, Essex
County. See Complaint for Foreclosure, attached as Exhibit A to the Certification of Robert D.
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Bailey, Esq. (“Baily Cert.”), ECF No. 3-4. A copy of the Summons and Complaint was served
upon Defendant Heidi Harrington on September 3, 2008. See Summons and Complaint, attached
as Ex. B to Baily Cert., ECF No. 3-5. The Chancery Division entered final judgment against
Defendants on December 23, 2009. See Order of Final Judgment, attached as Ex. C to Baily
Cert., ECF No. 3-6.
On April 26, 2013, Defendant Heidi Harrington filed a Notice of Removal. (See Case No.
2:13-cv-2679 (ES)(JAD). On September 5, 2013, United States Magistrate Judge Steven C.
Mannion recommended remanding the action because removal was untimely under 28 U.S.C
§ 1446(a).1 Report and Recommendation, attached as Ex. E to Baily Cert., ECF No. 3-8. On
December 27, 2013, the District Court remanded the matter. Opinion and Order, attached as Ex.
F to Baily Cert., ECF No. 3-9. The case was subsequently remanded to the Superior Court of
New Jersey, Chancery Division, Essex County.
On February 18, 2014, Defendant Heidi Harrington again removed the action to this
Court. However, she has alleged no facts that suggest any change in the law or factual
background that would warrant a different result than the remand previously ordered by the
District Court. In both instances, the Defendant sought to remove the same state court case on
the same grounds, without any articulated change in the facts or the law. On March 12, 2014

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Defendant Heidi Harrington sought to remove the action more than three years after the
Chancery Division entered final judgment. Accordingly, the Court determined that the removal
violated the requirement that a case be removed “within 30 days after the service of summons
upon the defendant” pursuant to 28 U.S.C § 1446(a), and recommended remand. Report and
Recommendation, attached as Ex. E to Baily Cert., ECF No. 3-8, at 6-7.
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Plaintiff filed the instant motion to remand. ECF No. 3. Defendant Heidi Harrington opposed
the motion. ECF No. 4.2
DISCUSSION
Plaintiff argues that this case should be remanded to the state court of New Jersey under
the doctrine of collateral estoppel because the District Court has already considered and
remanded this matter. Pl.’s Br., ECF No. 3, at 3. Collateral estoppel “prevents parties from
litigating again the same issues when a court of competent jurisdiction has already adjudicated
the issue on its merits, and a final judgment has been entered as to those parties and their
privies.” Witkowski v. Welch, 173 F.3d 192, 198 (3d Cir. 1999). Defendant Heidi Harrington
has already removed the underlying state court case, and the District Court remanded the action
to the state court on December 27, 2013. Therefore, the Court has already adjudicated on the
merits whether removal is appropriate. Defendant Heidi Harrington does not raise any facts to
suggest that there is something different about this motion from her prior unsuccessful attempt to
remove this action. In both this removal and the prior removal action, Defendant Heidi
Harrington removed the action to federal court in an attempt to attack the state court judgment
and assert federal claims against Wells Fargo Bank, N.A. In the prior removal action, this Court

Heidi Harrington’s opposition appears to allege that this Court has jurisdiction in this case
because the Rooker-Feldman doctrine of abstention does not apply due to alleged fraud in the
state court proceedings. ECF No. 4, at 2. “The Rooker–Feldman doctrine bars federal
jurisdiction under two circumstances: if the claim was ‘actually litigated’ in state court or if the
claim is ‘inextricably intertwined’ with the state adjudication.” ITT Corp. v. Intelnet Int'l, 366
F.3d 205, 210 (3d Cir. 2004). Defendant’s brief merely states the legal standards for a multitude
of different fraudulent activities. Defendant’s Reply Brief, ECF No. 4, at 13-18. The Court can
only infer from Plaintiff’s recitation of these standards that she attempts to allege some illdefined theory of fraud. However, she provides no facts in her brief, let alone plead fraud with
any particularity sufficient to suggest that some fraud occurred in the state court.
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remanded the case to state court as it was untimely pursuant to 28 U.S.C § 1446(a), a defect
Defendant Heidi Harrington remains unable to cure.3
Therefore, Defendant Heidi Harrington is now estopped from attempting to have the
Court reexamine the issues that have already been litigated.
CONCLUSION
For the foregoing reasons, the Undersigned respectfully recommends that the District
Court grant Plaintiff’s motion and remand this case to the Superior Court of New Jersey,
Chancery Division, Essex County. Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
72.1(c)(2), the parties have fourteen days to file and serve objections to this Report and
Recommendation.

s/ Michael A. Hammer__________
United States Magistrate Judge

Dated: April 8, 2014

Defendant Heidi Harrington’s removal is further deficient under 28 U.S.C. § 1446(b)(2)(A).
Section 1446(b)(2)(A) requires “all defendants who have been properly joined and served must
join in or consent to the removal of the action.” Defendant Heidi Harrington neglects to inform
the Court in either her Notice of Removal, ECF No.1, or her brief in opposition to remand, ECF
No. 4, whether the other defendants in the state court action have consented to removal in this
case.
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