Caires v. JP Morgan Chase Bank N.A.

Filing 37

MEMORANDUM DECISION AND ORDER. Magistrate Judge Ellis's Report and Recommendation is adopted. The Defendant's motion to remand this case to Connecticut state court is GRANTED. This case is REMANDED to Connecticut Superior Court. The Defenda nt's request for attorneys' fees and costs is DENIED. The Clerk of Court is directed to close the motion at ECF No. 12 and this case. So ordered. Re: 26 Report and Recommendations 12 Motion to Remand filed by JP Morgan Chase Bank N.A. (Signed by Judge George B. Daniels on 1/27/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------x
RICHARD CAIRES,
Plaintiff,
-against-

MEMORANDUM DECISION
AND ORDER

JP MORGAN CHASE BANK N.A.,

16 Civ. 2694 (GBD) (RLE)
Defendant.
---- - - -- - - - - - - - - - - - - - - -- - --- --- - -- - -x

GEORGE B. DANIELS, United States District Judge:

Pro se Plaintiff Richard Caires brought this action against Defendant JPMorgan Chase
Bank, N.A. ("Chase") for breach of contract, fraud, and other causes of action related to a note and
mortgage executed on a property in Greenwich, Connecticut. On April 11, 2016, Plaintiff removed
this action from the Connecticut Superior Court. (Notice of Removal, ECF No. 1.)
The Defendant moved to remand the case to Connecticut Superior Court and award
reasonable attorneys' fees and costs incurred by Chase in connection with the motion. (ECF No.
12.) Before this Court is Magistrate Judge Ronald L. Ellis's November 4, 2016 Report and
Recommendation ("Report," (ECF No. 26)), recommending that the case be remanded to
Connecticut Superior Court but denying Defendant's request for attorneys' fees and costs. 1
(Report, at 9.) This Court adopts those recommendations.
I.

LEGALSTANDARD

This Court "may accept, reject, or modify, in whole or m part, the findings or
recommendations" set forth within a magistrate judge's report. 28 U.S.C. § 636(b)(l). The Court

1

The relevant procedural and factual background is set forth in greater detail in the Report, and ts
incorporated herein.

must review de nova the portions of a magistrate judge's report to which a party properly objects.
Id. Portions of a magistrate judge's report to which no or merely perfunctory objections have been

made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-4 7 (S.D.N. Y.
2006). Clear error is present only when "upon review of the entire record, [the court is] left with
the definite and firm conviction that a mistake has been committed." Brown v. Cunningham, No.
14-CV-3515, 2015 WL 3536615, at *4 (S.D.N.Y. June 4, 2015) (internal citations omitted).
Prose submissions are read liberally and interpreted to "raise the strongest arguments that

they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). "Nonetheless, even a prose
party's objections to a Report and Recommendation must be specific and clearly aimed at
particular findings in the magistrate's proposal, such that no party be allowed a second bite at the
apple by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., No.
06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (quotation omitted), ajf'd, 367 F.
App'x 210 (2d Cir. 2010). Thus, to the extent that a prose party "makes only conclusory or general
objections, or simply reiterates the original arguments, the Court will review the Report strictly for
clear error." Id.
Magistrate Judge Ellis advised the parties that failure to file timely objections to the Report
would constitute a waiver of those objections on appeal. (Report, at 9-10.) On November 10,
2016, Plaintiff requested that the deadline for filing objections to the Report be extended 30 days
to December 24, 2016. (ECF No. 28.) This Court granted Plaintiffs request. (ECF No. 29.) On
December 27, 2016, Plaintiff filed objections to the Report. (Pl.'s Obj. to the R. & R., (ECF No.
31).) 2

However, Plaintiffs submission does not cite or object to any particular findings in the

2

The following day, Plaintiff filed a corrected set of objections (ECF No. 32) with exhibits that were
inadvertently omitted from the December 27, 2016 filing.

-2-

Report. Rather, Plaintiffs submission merely argues in general terms why remand is inappropriate
in this case. Accordingly, this Court will review the Report for clear error.
II.

MOTION TO REMAND

The Report properly rejected Chase's argument that Plaintiffs Notice of Removal is
procedurally deficient under the liberal pleading standards appropriate for pro se submissions.
(Report, at 4.) Nonetheless, the Report properly determined that Plaintiff's request for removal
fails on other grounds. First, the Report correctly concluded that venue is not proper in this
District. (Id., at 4-5.) Because Chase's foreclosure counterclaim was remanded to Connecticut
state court, and because the property at issue is also located in that state, Connecticut federal court
would be the proper venue for removal.

However, the Connecticut state law foreclosure

counterclaim, the only viable claim remaining in this case, cannot serve as the basis for removal,
nor could that action have been originally filed in this Court. (Id., at 5.) Additionally, Plaintiff's
Notice of Removal also disregards the July 24, 2012 dismissal and the September 27, 2012 remand
of the foreclosure proceeding by the U.S. District Court for the District of Connecticut. (Id., at 6.)
Separately, the Report correctly found that Plaintiff's notice of removal is untimely, and
that no exceptions to the deadline for removal justify the more than one year delay. (Id., at 6-8.)
As the Report notes, Plaintiff conceded that his notice of removal was filed late, but he argued for
a "bad faith" exception to the one-year deadline in 28 U.S.C. § 1446(c). (Id., at 6-7.) However,
the Report correctly concluded that the exception does not apply in this case because there has
been no evidence that Chase acted to prevent removal. (Id., at 7.)
For all these reasons, the motion to remand here should also be granted. 3

3

The Report's recommendation that Chase's motion for attorneys' fees and costs should be denied is not
clearly erroneous, particularly given Plaintiffs prose status. (Id., at 8-9.) Accordingly, this Court does
not award attorneys' fees or costs to Defendant.

-3-

Ill.

CONCLUSION

Magistrate Judge Ellis's Report and Recommendation is adopted. The Defendant's motion
to remand this case to Connecticut state court is GRANTED. This case is REMANDED to
Connecticut Superior Court. The Defendant's request for attorneys' fees and costs is DENIED.
The Clerk of Court is directed to close the motion at ECF No. 12 and this case.
Dated: New York, New York
January 27, 2017
SO ORDERED.

United States District Judge

-4-