500 PARK AVE., E.O., INC. v. DEY-EL

Filing 10

OPINION AND ORDER granting 4 Motion to Remand to the Superior Court of NewJersey, Essex Vicinage; that Plaintiffs motion for summary judgment, D.E. 4, is DENIED; that Plaintiff's motion to dismiss, D.E. 4, is DENIED; that Plaintiff's motion for fees and costs, D.E. 4, is DENIED; that the Clerks Office shall close this matter. Signed by Judge John Michael Vazquez on 1/11/2018. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION

500 PARK AyE, E.O., INC.,
Plaintiff,

Civil Action No. 17-603
OPINION AND ORDER

V.

CRYSTAL FENTY DEY-EL,
Defendant.

John Michael Vaziuez, U.S.D.J.
I.

INTRODUCTION

This matter comes before the Court on Plaintiff 500 Park Avenue, E.O. Inc.’s (“500 Park
Avenue” or “Plaintiff’) motion to remand to state court. D.E. 4. Defendant Crystal Dey-El (“Ms.
Dey-EP’ or “Defendant”) opposed this motion) D.E. 7. This motion was decided without oral
argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. The Court
has considered the parties’ submissions, and for the reasons stated below, Plaintiffs motion is
GRANTED.

Plaintiffs brief in support of its motion to remand (D.E. 4) will be referred to hereinafier as “P1.
Br.” Defendant’s opposition to Plaintiffs’ brief (D.E. 7) will be referred to hereinafter as “Def.
opp.,’

II.

FACTS2 AND PROCEDURAL HISTORY

Plaintiff 500 Park Avenue is a residential cooperative, or “co-op,” comprised of twenty
apartments. Complaint (“Compl.”)

¶ 2. Residents of the co-op own stock in their apartments.

Id.

Beginning in August 2008, Defendant Crystal Dey-El owned stocked in, and lived in, one of the
co-op’s apartments. Id.

¶ 4. Upon moving into the apartment, Defendant received a copy of the

Corporation’s Amended By-Laws (“By-Laws”). Id.

¶ 7. The By-Laws allow Plaintiff, upon a

resident’s default of payment, to re-possess both the resident’s stock certificates in the apartment
and apartment premises. Id. ¶8.
Plaintiffs allege that beginning in August 2011, Defendant failed to pay the monthly
maintenance fees. Id.

¶ 9. This resulted in Defendant owing an outstanding balance of519.097.30.

Pursuant to the By-Laws, Plaintiff moved to re-possess Defendant’s stock in the apartment as well
as the physical premises. Id.

¶J 7-20, Ex. H.

On July 23, 2014, Plaintiff filed its Complaint and an order to show cause in the Chancery
Division of the New Jersey Superior Court (Docket No. C-152-14). P1. Br., Certification of Lisa
Hendricks Richardson (“Richardson Cert.”). Id.

¶ 3. The Chancery Division transferred the case

to the Law Division (Docket No. L-5567-14). Id.

¶ 4. On October 27, 2014, the state court entered

default judgment against Defendant. Id.

¶ 6, Ex. B. After a series of procedural events during
-

which time Plaintiff moved for final judgment, the court vacated the default judgment, and the
Court denied Defendant’s motion to dismiss the Complaint the court entered default judgment
-

for a second time against Defendant. Id.

¶J 7, 8,

15, 20.

The facts of this matter derive from Plaintiffs Complaint. D.E. 1. In ruling on a motion to
remand, “the district court must assume as true all factual allegations of the complaint.” Steel
Valley Auth. v. Union Switch & Signal Div., 809 f.2d 1006, 1010 (3d Cir. 1987).

2

2

On April 19, 2016 the state court entered final judgment against Defendant and found that
Defendant owed Plaintiff $32,6999.60 for unpaid maintenance fees and accrued assessment
charges. Id.

¶ 25, Ex. J & I.

against Defendant. Id.

Then, on April 29, 2016, the state court issued an order for ejectment

¶ 26, Ex. K.

following the court’s orders, on January 18, 2017 Defendant

filed an order to show cause in state court. Id.

¶ 34.

Then on January 27, 2017 Defendant filed a

notice of removal, a motion to dismiss, and counterclaim in federal court. D.E. 1, 3. Subsequently,
on february 3, 2017 in state court, Defendant and Plaintiff appeared to address Defendant’s
pending motion to vacate and order to show cause. P1. Br., Richardson Cert.

¶ 35.

At the hearing,

Defendant informed the state court that she had filed a notice of removal and counterclaim in
federal court. The state court stayed the proceedings. Id.

¶ 36.

Plaintiff then filed a motion to remand in this Court on March 1, 2017. D.E. 4. Defendant
opposed this motion. D.E. 7. The pending motion to remand is now before the Court.
III.

LAW AND ANALYSIS
At the outset, the Court notes that Plaintiff has moved to (1) remand the case, (2) for a

dismissal of Defendant’s motion to dismiss and counterclaim, and (3) for summary judgment.
Pursuant to Federal Rule of Civil Procedure 56(b), a party may not move for summary judgment
Discovery has not yet occurred in this case.

until thirty days after the close of discovery.

Therefore, summary judgment is inappropriate. Further, a party may move to remand a case or to
dismiss a case, but may not move for both simultaneously.3 Thus, here, the Court will only address
Plaintiff’s motion to remand.

A party could conceivably seek alternate relief, such as requesting a remand or, alternately, a
dismissal. Plaintiff, however, has not styled its motion in the alternate. Instead, Plaintiff seeks
both a remand and a dismissal. As discussed below, the Court understands why Plaintiff may
have proceeded in this fashion because Defendant, who is proceeding pro se, filed her
“counterclaim” in federal court after removing the matter from state court.
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Standard of Review

A motion to remand is governed by 28 U.S.C.

§ 1447(c), which provides that a case

removed to federal court shall be remanded “[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction.” Initially when a case is filed in state court, a
defendant may remove any action over which the federal courts have jurisdiction. 28 U.S.C.

§

144 1(a). The party removing the action has the burden of establishing federal jurisdiction. Steel
Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). This is a heavy
burden because removal statutes are “strictly construed against removal and all doubts should be
resolved in favor of remand.” Id. For removal to be proper, a federal court must have original
jurisdiction, that is, the removed claims must arise from a “right or immunity created by the
Constitution or laws of the United States.” Concepcion v. CfG Health Svs. LLC, No. 13-02081,
2013 WL 5952042, at *2 (D.N.J. Nov. 6, 2013); see also 28 U.S.C.

§ 1331 (“The district courts

shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.”).
In determining whether a complaint alleges a federal question, courts are generally guided
by the well-pleaded complaint rule. According to the nile, a plaintiff is ordinarily entitled to
remain in state court so long as its complaint does not, on its face, affirmatively allege a federal
claim.” Concepcion, 2013 WL 5952042, at *2.4

An exception to the well-pleaded complaint rule is found through complete preemption. See
Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987); Fuyzbowski e. US. Healthcare, Inc., 245
F.3d 266, 271 (3d Cir. 2001); LaMonica v. Guardian Life Ins. Co. ofArn., No. 96-6020, 1997
WL 80991, at *3 (D.N.J. Feb. 20, 1997). The exception is not applicable here.
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A. Legal Analysis

Plaintiff moves to remand this case to state court because Defendant failed to timely
remove this matter from state court and because this matter does not present a federal question.
As to the timeliness argument, Plaintiff asserts that Defendant failed to remove the case to
federal court within the 30 day allowance pursuant to 28 U.S.C.

§ l446. Specifically, Plaintiff

served the Complaint on Defendant on August 31, 2014. P1. Br. at 4. Defendant failed to answer
the Summons and Complaint; thereafier, the state court ordered a default judgment against
Defendant on October 27, 2014. Id. Although the state court vacated the default judgment on
October 9, 2015, Defendant did not remove the case from state court until January 27, 2017. Id.;
D.E. 1. As to the federal question argument, Plaintiff argues that Defendant fabricated a Federal
Debt Collection Practice Act (“FDCPA”) claim to raise a federal question in her counterclaim.
further, Plaintiff asserts that its Complaint does not present a federal question. P1. Br. at 6.
Defendant does not address the timeliness of her removal of this matter, but rather
focuses on federal question jurisdiction. Defendant argues that the Court has jurisdiction
pursuant to the FDCPA, 15 U.S.C.

§ 1692

etseq. In fact, Defendant claims that jurisdiction lies

solely in the federal, not state, courts. Def. Opp. at 2, D.E. 7. Defendant is incorrect. The
FDCPA is not applicable here because, among other reasons, 500 Park Avenue is not a “debt

28 U.S.C. § 1446, in relevant part, reads: “The 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.”
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collector” under the FDCPA. 15 U.S.C.

§ l692(a)(6).6 500 Park Avenue’s principal business

purpose is not the collection of debts.
Defendant also relies on Rule $1 (c) of the Federal Rules of Civil Procedure, claiming that
the current motion to remand was filed out of time. However, Rule 81(c) applies to the filing of
an answer, if the pleading was not submitted in the original state action. Here, Plaintiff did file a
Complaint in state court. Moreover, Plaintiff is seeking a remand.
The Court agrees with Plaintiff that Defendant did not file a timely notice of removal.
Plaintiff filed the matter in 2014 and properly served Defendant. Defendant did not remove the
matter until 2017, literally years after the thirty-day period had expired.
Moreover, the Court finds that remand is appropriate because this Court does not have
subj ect-matter jurisdiction over the matter. As discussed above, the case does not present the
Court with a federal question. 28 U.S.C.

§ 1331. Diversity jurisdiction is also not present.

Plaintiff and Defendant are both New Jersey citizens. Compl.
of citizenship pursuant to 28 U.S.C.

¶ 1, 3. Thus, there is no diversity

§ 1332.

The Court further lacks subject-matter over this matter because the Rooker-feidman
doctrine appears to apply. “The Rooker—Feidman doctrine precludes lower federal courts from
exercising appellate jurisdiction over final state-court judgments because such appellate
jurisdiction rests solely with the United States Supreme Court.” In re Madera. 586 F.3d 228,
15 U.S.C. § 1692(a)(6), in relevant part, reads: “The term “debt collector” means any person
who uses any instrumentality of interstate commerce or the mails in any business the principal
purpose ofwhich is the collection of any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed or due another.” (emphases
added)
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“Defendants may remove an action on the basis of diversity of citizenship if there is complete
diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of
the forum State.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005).
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232 (3d Cir. 2009) (quoting Lance v. Dennis, 546 U.S. 459, 463 (2006)); see also Williams v.
BASF Catalysts LLC, 765 f.3d 305, 315 (3d Cir. 2014). The Third Circuit has ruled that the
doctrine applies when four elements are met: “(1) the federal plaintiff lost in state court; (2) the
plaintiff ‘complain[s] of injuries caused by [the] state-court judgments’; (3) those judgments
were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court
to review and reject the state judgments.”8 Great W. Mining & Mineral C’o. v. fox Rothschild
LLF, 615 F.3d 159, 166 (3d Cir. 2010) (citing Exxon Mobil Corp. v. Saudi Basic Indtts. Corp.,
544 U.S. 280, 284 (2005)).

“The second and fourth requirements are the key to determining whether a federal suit
presents an independent, non-barred claim.” Great W Mining, 615 F.3d at 166. The Third
Circuit advises that “[t]he second requirement—that a plaintiff must be complaining of injuries
caused by a state-court judgment—may also be thought of as an inquiry into the source of the
plaintiffs injury.” Id. at 166 (citing Turner v. Crawford Square Apartments III, L.P., 449 F.3d

542, 547 (3d Cir.2006). “A useful guidepost is the timing of the injury, that is, whether the

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The Third Circuit previously relied on a different test to determine whether the Rook-erFeldman doctrine applied to a subsequent federal suit. However, in light of Lance and Exxon
Mobil, the Third Circuit concluded that “‘caution is now appropriate in relying on our pre-Exxon
formulation of the Rooker—feldman doctrine,’ which focused on whether the state and federal
suits were ‘inextricably intertwined.” Great W Mining & Mineral C’o. v. Fox Rothschild LLP,
615 F.3d 159, 169 (3d Cir. 2010) (quoting Gaiy v. Braddock Cemetaiy, 517 F.3d 195, 200 n.5
(3d Cir. 200$)). In place of the “inextricably intertwined” analysis, in Great W. Mining, the
Third Circuit concluded that a four-factor test is appropriate.
The United States Supreme Court’s most recent case on the Rooker-Fetdman doctrine, Skinner
v. Switzer explained that the Rooker-Feidman doctrine is triggered when “[t]he losing party in
state court file[s] suit in a U.S. District Court after the state proceedings ended, complaining of
an injury caused by the state-court judgment and seeking federal-court review and rejection of
that judgment.” 562 U.S. 521, 531 (2011).

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injury complained of in federal court existed prior to the state-court proceedings and thus could
not have been ‘caused by’ those proceedings.” Id. at 167. The Third Circuit has explained that
the fourth requirement is “closely related” to the second requirement, Id. at 168, but that the
fourth requirement is aimed at plaintiff asking a federal district court to engage in “appellate
review of state-court decisions or a review of the proceedings already conducted by the lower
tribunal to determine whether it reached its result in accordance with law.” Id. (internal citations
and quotations omitted).
Here, Defendant appears to be, in essence, appealing the state court decisions granting
final judgment against Defendant and ordering that Defendant be ejected from the co-op
apartment. As discussed above, Defendant did not seek to remove this matter to federal court
until January 27, 2017, after the state court had entered both the final judgment and ejectment
ordered against her. Defendant appears to want the Court to reconsider the state court’s rulings.
It will not do so.
Finally, as stated above, after Defendant removed the case to federal court, she also filed
a “Demand for Dismissal of New Jersey State/City Superior Court Action and Counterclaim.”
D.E. 3. It is unclear to the Court exactly what Defendant intends this document to be, as it could
be construed as a motion for relief or a motion to amend Defendant’s pleadings in state court (if
she filed a pleading in state court. However, it is not clear to the Court that Defendant filed a a
pleading in). In any event, in her “demand,” Defendant relies upon federal jurisdiction pursuant
to the FDCPA, which, as noted, is not applicable. As a result, to the extent Defendant is seeking

8

relief pursuant to her “Demand for Dismissal,” it is denied both substantively and as moot in
light of the Court’s decision to remand.’°
IV.

CONCLUSION
For the reasons set forth above, and for good cause shown,
It is on this 11th day of January, 2018, hereby
ORDERED that Defendant’s motion for relief, D.E. 3, is DENIED; and it is further
ORDERED that Plaintiffs motion for summary judgment, D.E. 4, is DENIED; and it is

further
ORDERED that Plaintiffs motion to dismiss, D.E. 4, is DENIED; and it is further
ORDERED that Plaintiffs motion for fees and costs, D.E. 4, is DENIED; and it is further
ORDERED that Plaintiffs motion to remand this matter to the Superior Court of New
Jersey, Essex Vicinage, D.E. 4 is GRANTED; and it is further
ORDERED that the Clerk’s Office shall close this matter.11

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John Michael Vazqué U.W.J.

101n denying the relief, the Court is not precluding Defendant from making whichever motion she
thinks appropriate in the state court. At the same time, the Court is not precluding Plaintiff from
opposing any such motion, including on the grounds that it is procedurally improper or out-oftime.
“The Clerk’s Office does not have to mail a copy of this Opinion and Order to Defendant
because she is registered to receive electronic filings in this case. D.E. 2.
9