Hudson City Savings Bank et al v. Mattis et al
ORDER GRANTING 8 Plaintiffs' Motion to Remand. This matter has now been remanded to Wake County Superior Court. Signed by US District Judge Terrence W. Boyle on 4/28/2014. Copy mailed to pro se defendants via US Mail. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
HUDSON CITY SAVINGS BANK, et al.,
DAVID M. MATTIS and MARGARET A.
This matter is before the Court on plaintiffs' motion to remand [DE 8]. For the reasons
stated herein, the motion is GRANTED.
This case was initiated on December 30, 2013 as a foreclosure special proceeding in
Wake County Superior Court. [DE 1-5]. It was filed as an in rem action seeking to foreclose a
deed of trust executed by defendants David and Margaret Mattis. [!d.]. On January 24, 2014,
defendants filed a notice of removal that removed the action to this Court. [DE 1]. Defendants
assert that this Court has diversity jurisdiction and federal question jurisdiction. Plaintiffs filed
this motion on February 20, 2014 seeking to have the matter remanded back to Wake County.
An action is removable to federal court only if it could have been brought in federal
court. 28 U.S.C. § 1441(a) (2012). Under federal questionjurisdiction, the Court has jurisdiction
over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28
U.S.C. § 1331. Under diversity jurisdiction, a civil action may be brought in federal court "where
the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between citizens of different States." 28 U.S.C. § 1332(a) (2012). The burden of
establishing federal jurisdiction is on the party seeking removal. Mulcahey v. Columbia Organic
Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction must be strictly
construed and if federal jurisdiction is doubtful, remand is necessary. !d.
Federal Question Jurisdiction.
It is clear that the origination of this action is based on a state law foreclosure proceeding.
Defendants claim federal question jurisdiction based on the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692. In their notice of removal, defendants allege that plaintiffs have
violated various provisions of the FDCP A. Defendants invoke the FDCPA in order to assert a
defense or raise a counterclaim which does not grant this Court jurisdiction under federal
question jurisdiction doctrine. The Supreme Court has rejected the idea that a defendant can
remove a case brought in state court under state law by raising a federal counterclaim. See
Holmes Group v. Varnado Air. Circulation Sys., 535 U.S. 826, 831-32 (2002) (holding that
jurisdiction based in whole or in part on 28 U.S.C. § 1338 did not extend to a case where such a
claim had been asserted by compulsory counterclaim); Vecchione v. Option One Mortgage, 2009
U.S. dist. LEXIS 97770, *2 (M.D.N.C. Oct. 16, 2009) (holding that mortgagor could not remove
North Carolina state foreclosure proceedings by attempting to raise federal counterclaims). The
Holmes court clearly stated that "well-pleaded complaint" rule requires a federal court to focus
its review upon the allegations contained within the plaintiff's complaint in determining whether
the case is removable and clearly rejected the proposition that a counterclaim can serve as the
basis for a district court's "arising under" jurisdiction. Holmes, 535 U.S. at 830-32.
Here plaintiffs' complaint asserts no claim that arises under federal law and therefore
removal is not appropriate under federal question jurisdiction.
Defendant contends that removal was proper based on this Court's diversity jurisdiction
pursuant to 28 U.S.C. § 1332. However, as North Carolina citizens, defendants are not entitled to
remove this action on the basis of diversity jurisdiction. In matters where a federal court has
diversity jurisdiction, the matter is removable "only if none of the parties in interest properly
joined and served as defendants is a citizen of the State in which such action is brought." 28
U.S.C. § 1441(b)(2). Defendants' notice of removal expressly states that they are residents of
North Carolina. [DE 1 ,-r 18]. Although it is true that residency is not synonymous with
citizenship, defendants have alleged that they are entitled to remove this action based upon
plaintiffs' connection to New Jersey and defendants' connection to North Carolina. Therefore
defendants are procedurally barred from removing this case under 28 U.S.C. § 1441(b)(2).
As defendants have not met their burden of establishing federal jurisdiction this matter is
remanded to Wake County Superior Court.
For the foregoing reasons, the plaintiffs motion to remand is GRANTED. The matter is
REMANDED to Wake County Superior Court.
il. day of April, 2014.
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE
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