CENTRAL MORTGAGE CORPORATION et al v. CAMPBELL
Filing
25
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 11/08/2012, that CMC's Motion to Remand to State Court (Docket Entry 8 ) is GRANTED IN PART in that this case is REMANDED to the General Court of Justi ce, Superior Court Division, Guilford County, North Carolina, for lack of subject-matter jurisdiction. FURTHER that, in light of the remand of this case to state court for lack of subject-matter jurisdiction, the Clerk's Office shall TERMINATE AS MOOT CMC's Motion to Dismiss Counterclaims for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Docket Entry 10 ). FURTHER that, pursuant to 28 U.S.C. § 1447(c), Campbell must pay CMC's just costs and actual expenses (including attorney fees) incurred due to the improper removal of this case. FURTHER that, because Campbell's response to CMCs supplemental filing regarding its costs and expenses contests the reasonableness of the claimed attorney work-hours and hourly rate, on or before November 19, 2012, CMC may file a reply not to exceed three pages (excluding attached affidavits or exhibits) supporting its cost-shifting request. FURTHER that the remand to st ate court is STAYED for 21 days because "[a] party may serve and file objections to th[is] [O]rder within 14 days after being served with a copy. A party may not assign as error a defect in the [O]rder not timely objected to. The distri ct judge in the case must consider timely objections and modify or set aside any part of the [O]rder that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a). If any party timely objects to this Order, the 21day stay shall contin ue in effect until further order, but, absent any timely objection, at the end of the 21day period, the Clerk's Office shall send a certified copy of this Order to the Clerk of the General Court of Justice, Superior Court Division, Guilford County, North Carolina.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CENTRAL MORTGAGE CORPORATION
and TRUSTEE SERVICES OF
CAROLINA LLC,
Plaintiffs and
Counter Defendants,
v.
ANTHONY CLAY CAMPBELL,
Defendant and
Counter Claimant.
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1:12CV287
MEMORANDUM OPINION AND ORDER
This case comes before the Court on a Motion to Remand to
State Court by Central Mortgage Corporation (“CMC”) (Docket Entry
8) and a Motion to Dismiss Counterclaims for Lack of Subject Matter
Jurisdiction and Failure to State a Claim also by CMC (Docket Entry
10).
For the reasons that follow, the Court will remand this case
to state court for lack of subject-matter jurisdiction.
BACKGROUND
This case commenced in this Court as a result of a Notice of
Removal from Guilford County State Court filed pro se by Anthony
Clay Campbell.
(Docket Entry 1.)
Campbell thereafter filed a
document that purported to assert counterclaims against CMC and/or
Trustee Services of Carolina LLC (“TSC”), including under the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
Entry 3 at 3-4.)
(Docket
CMC then filed the instant Motions, both of which
raise the issue of subject-matter jurisdiction (see Docket Entry 8
at 2-3; Docket Entry 10 at 2-3) and request an award of reasonable
expenses, including attorney fees (see Docket Entry 8 at 3-4;
Docket Entry 10 at 4).
After Campbell responded to the instant
Motions (see Docket Entries 17, 18), the Court noticed a hearing
for July 30, 2012 (Docket Entry 19).
At the hearing, the Court
heard argument, determined that Campbell had removed the case in
the absence of subject-matter jurisdiction and under circumstances
that warranted payment of just costs and actual expenses under 28
U.S.C. § 1447(c), directed CMC to make a supplemental filing
setting out such costs and expenses, and permitted Campbell to
respond. (See Docket Entry dated July 30, 2012.) CMC and Campbell
then made the requisite filings.
(Docket Entries 23, 24.)
DISCUSSION
CMC’s instant Motions assert that the Court lacks subjectmatter jurisdiction. (Docket Entry 8 at 2-3; Docket Entry 10 at 23.)
Moreover, this Court “has an independent obligation to assess
its subject-matter jurisdiction
. . . .”
Constantine v. Rectors
& Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir.
2005).
“The burden of establishing federal jurisdiction is placed
upon the party seeking removal.”
Mulcahey v. Columbia Organic
Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
Campbell’s removal
notice states that “[j]urisdiction has been established pursuant to
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28 U.S.C. [§§] 1331, 1332 and 1441.”
(Docket Entry 1 at 1.)
The
Court lacks subject-matter jurisdiction under those statutes.
The state case Campbell purported to remove is a foreclosure
action.
(See id. at 2.)
exists under Section 1331.
No federal question jurisdiction thus
See Trustee Servs. of Carolina, LLC v.
Rivera, No. 3:12CV146, 2012 WL 1645534, at *2 (W.D.N.C. May 2,
2012) (unpublished) (“As a matter of law, foreclosure actions
brought under state law do not give rise to federal question
subject matter jurisdiction.”); Vecchione v. Option One Mortg. Co.,
No. 1:09CV380, 2009 WL 3435166, at *1 (M.D.N.C. Oct. 16, 2009)
(unpublished) (“The underlying action is a state court action for
foreclosure. The complaint in the action raised no federal issues.
The fact that [the plaintiff] now seeks to raise federal issues in
this action and in his removal petition does not make the action
removable on the basis of a federal question. It is axiomatic that
a federal question must appear on the face of the well-pleaded
complaint, and raising a federal counterclaim or defense does not
make the action removable on the basis of a federal question.”
(internal
quotation
marks
omitted));
In
the
Matter
of
the
Foreclosure of the Deed of Trust Dated Feb. 8, 1999, No. 1:03CV527,
2003 WL 21664204, at *2 (M.D.N.C. July 14, 2003) (unpublished)
(“[B]ecause the state court action that [the defendants] are
3
attempting to remove is a foreclosure proceeding, there is no
federal question jurisdiction that arises in the instant matter.”).
Nor does diversity jurisdiction exist under Section 1332,
given that the removal notice acknowledges facts establishing that
Campbell and TSC are both citizens of North Carolina (see Docket
Entry 1 at 1, 3).
See, e.g., Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 553 (2005) (“[T]he presence in the
action of a single plaintiff from the same State as a single
defendant
deprives
the
district
court
of
original
diversity
jurisdiction over the entire action.”); Sanderlin v. Hutchens,
Senter & Britton, P.A., 783 F. Supp. 2d 798, 801 (W.D.N.C. 2011)
(“Plaintiffs have not satisfied the complete diversity requirement.
Specifically Plaintiffs and Defendant Hutchens, Senter & Britton,
P.A. are both citizens of North Carolina.”). Finally, Section 1441
provides for removal only where the federal court would have had
“original jurisdiction,” see 28 U.S.C. § 1441(a), which (for
reasons noted above) this Court lacked.
At the hearing, the Court gave Campbell a chance to explain
how he came to believe he had valid grounds for removal and his
responses essentially amounted to a claim that “Internet research”
led him to that conclusion.
When pressed, Campbell could not
describe what sources he had consulted on the Internet.
Moreover,
a review of Campbell’s filings opposing CMC’s instant Motions shows
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that he offered no remotely responsive rejoinder to CMC’s clear
arguments establishing the absence of any legitimate rationale for
removal, but that he instead simply strung together legalistic
gibberish in a manner that vexatiously extended these proceedings.
In sum, because Campbell had no objectively reasonable basis to
remove this case, the Court will require him to make “payment of
just costs and any actual expenses, including attorney fees, [CMC]
incurred as a result of the removal,” 28 U.S.C. § 1447(c).
See
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (“Absent
unusual circumstances, courts may award attorney’s fees under
§ 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal.”); In re Lowe, 102 F.3d 731,
733 n.2 (4th Cir. 1996) (indicating that Section 1447(c) authorizes
cost-shifting where, even if removal was “not necessarily in bad
faith, a cursory examination would have revealed a lack of federal
jurisdiction” (internal ellipses and quotation marks omitted)).
CMC has provided an affidavit of counsel setting out its costs
and attorney fees (as well as the underlying number of attorney
hours expended and hourly rate charged).
(Docket Entry 23-1.)
Campbell has filed a response contesting the reasonableness of both
the number of attorney hours and the hourly rate.
Entry 24 at 4-5.)
(See Docket
The Court originally did not authorize CMC to
file a reply (see Docket Entry dated July 30, 2012); however, in
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light of Campbell’s response, the Court will permit CMC to file a
reply
showing
the
propriety
of
its
request
in
light
of
the
standards generally set for fee awards in Robinson v. Equifax Info.
Servs., LLC, 560 F.3d 235, 243-46 (4th Cir. 2009).
CONCLUSION
This Court lacks subject-matter jurisdiction.
As a result,
“[t]his civil action was improperly removed from the state courts
and must be returned to the proper court.”
3435166, at *1.1
nature
of
the
Vecchione, 2009 WL
Further, because of the objectively unreasonable
removal,
Campbell
must
reimburse
CMC
for
the
reasonable expenses, including attorney fees, that it incurred.
IT IS THEREFORE ORDERED that CMC’s Motion to Remand to State
Court (Docket Entry 8) is GRANTED IN PART in that this case is
REMANDED to the General Court of Justice, Superior Court Division,
Guilford
County,
North
Carolina,
for
lack
of
subject-matter
jurisdiction.
IT IS FURTHER ORDERED that, in light of the remand of this
case to state court for lack of subject-matter jurisdiction, the
Clerk’s Office shall TERMINATE AS MOOT CMC’s Motion to Dismiss
1
For reasons stated in William E. Smith Trucking, Inc. v.
Rush Trucking Ctrs. of N.C., Inc., No. 1:11CV887, 2012 WL 214155,
at *2–6 (M.D.N.C. Jan. 24, 2012) (unpublished), the undersigned
United States Magistrate Judge opts to enter an order rather than
a recommendation regarding remand.
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Counterclaims for Lack of Subject Matter Jurisdiction and Failure
to State a Claim (Docket Entry 10).
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1447(c),
Campbell must pay CMC’s just costs and actual expenses (including
attorney fees) incurred due to the improper removal of this case.
IT IS FURTHER ORDERED that, because Campbell’s response to
CMC’s supplemental filing regarding its costs and expenses contests
the reasonableness of the claimed attorney work-hours and hourly
rate, on or before November 19, 2012, CMC may file a reply not to
exceed three pages (excluding attached affidavits or exhibits)
supporting its cost-shifting request.
IT IS FURTHER ORDERED that the remand to state court is STAYED
for 21 days because “[a] party may serve and file objections to
th[is] [O]rder within 14 days after being served with a copy.
A
party may not assign as error a defect in the [O]rder not timely
objected to.
The district judge in the case must consider timely
objections and modify or set aside any part of the [O]rder that is
clearly erroneous or is contrary to law.”
Fed. R. Civ. P. 72(a).
If any party timely objects to this Order, the 21–day stay shall
continue in effect until further order, but, absent any timely
objection, at the end of the 21–day period, the Clerk’s Office
shall send a certified copy of this Order to the Clerk of the
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General Court of Justice, Superior Court Division, Guilford County,
North Carolina.
This the 8th day of November, 2012.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
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