PNC Bank, National Association v. Cook

Filing 9

ORDER ADOPTING 6 REPORT AND RECOMMENDATIONS and Cook's 8 Objections are OVERRULED. It is hereby ORDERED that: 1. The petition for removal of the state court action to this federal court is DENIED. 2. This matter is DISMISSED from the do cket of this Court. 3. The matter is REMANDED back to the state court. Further, the Court certifies pursuant to 28 U.S.C. § 1915 that any appeal of this Order adopting the Report would not be taken in good faith, and therefore, Cook is denied leave to appeal In forma pauperis. Signed by Judge Michael R. Barrett on 9/11/13. (lk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

PNC BANK, NATIONAL
ASSOCIATION,

CASE NO.: 1:12CV930

Plaintiff,

Barrett, J.
Bowman, M.J.

EDWARD COOK, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Stephanie K. Bowman's
January 8, 2013 Report and Recommendation ("Report").

(Doc. 6).

The Report

recommends that Defendant Edward Cook's ("Cook") petition for removal be denied and
that this Court remand the matter back to the state court.
The parties were given proper notice pursuant to Federal Rule of Civil Procedure
72(b), including notice that the parties may waive further appeal if they fail to file
objections in a timely manner. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981). 1 Cook has filed timely Objections to the
Report. (Doc. 8).
I.

BACKGROUND
Plaintiff PNC Bank, National Association ("PNC") filed a complaint in foreclosure

against Cook on November 2, 2011 in the Hamilton County, Ohio Court of Common
Pleas. A judgment was entered against Cook on March 19, 2012, and on or about

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Notice was attached to the Report. (Doc. 6, p. 7).

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December 3, 2012, Cook filed a notice of appeal to the Ohio Court of Appeals. He filed
his motion to proceed in forma pauperis, along with his notice of removal, in this Court
on December 5, 2012. (Doc. 1).
II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are

received on a dispositive matter, the assigned district judge "must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to." Fed.
R. Civ. P. 72(b)(3). After review, the district judge "may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions."

Id.; see also 28 U.S.C. § 636(b)(1).

General

objections are insufficient to preserve any issues for review: “[a] general objection to the
entirety of the [M]agistrate [Judge]’s report has the same effect[s] as would a failure to
object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Nevertheless, the objections of a pro se plaintiff will be construed liberally.

See

Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)).
III.

ANALYSIS
In his petition for removal, Cook contends that he has been denied his due

process and equal protection rights during the state court proceedings because PNC
was "not proceeding in the manner required by the Code of Civil Procedure" and did not
follow the rules of evidence requiring that evidence be authenticated prior to being
admitted. (Doc. 4, pp. 3-4). Thus, he claims to have been dispossessed of his property

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without due process of law. (Id.) He asserts that the Court has jurisdiction over this
matter pursuant to 28 U.S.C. §§ 1441, 1443, and 1446. (Id.)
The Magistrate Judge found that removal is improper for several reasons: (1)
Cook's notice is time barred under 28 U.S.C. § 1446(b)(1); (2) Cook failed to
demonstrate diversity of citizenship as required under 28 U.S.C. § 1441(b) because he
is an Ohio resident; (3) no basis for federal question jurisdiction exists under 28 U.S.C.
1331; and (4) Cook failed to show any violation of a federal right to racial equality under
28 U.S.C. § 1443(1). (Doc. 6, pp. 1-5).
In his objections, Cook takes issue with the Magistrate Judge's finding that
removal is not appropriate on any of the four grounds. (Doc. 8, p. 4). In addition, Cook
raises several new reasons why he believes removal is appropriate, which include (1)
supplemental jurisdiction under 28 U.S.C. § 1367; (2) joinder of claims under 28 U.S.C.
1441(c); (3) multi-party, multi-forum jurisdiction under 28 U.S.C. § 1441(e); and (4) civil
rights issues under 28 U.S.C. § 1443(2).
The Court starts with Cook's objections to the specific issues addressed by the
Magistrate Judge. First, in regards to the petition for removal being untimely under 28
U.S.C. § 1446(b)(1), Cook asserts no new arguments. Instead, he states only in a
conclusory fashion that the Court has jurisdiction under that statute. The Court agrees
with the Magistrate Judge that the petition for removal is time barred. A notice of
removal must be filed within 30 days of receipt of an initial pleading. 28 U.S.C. §
1446(b)(1).

Cook's own notice of removal states that he was "notified of [PNC's]

Complaint after its filing in November of 2011." (Doc. 4, p. 2). Cook filed his motion for
leave to proceed in forma pauperis, along with his notice of removal, on December 5,

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2012. (Doc. 1). Thus, his notice was filed well beyond the thirty-day time period. The
objection therefore is overruled.
Second, as to 28 U.S.C. § 1441(b), Cook again makes only conclusory
statements as to the Court's jurisdiction under that statute. Given that the Magistrate
Judge correctly determined that removal based of diversity jurisdiction was not proper
because Cook is an Ohio resident and the case was filed in a state court in Ohio (Doc.
6, p. 3), this objection is overruled.
Third, Cook objects to the Magistrate Judge's conclusion that federal question
jurisdiction does not exist in this case. Other than referencing the Magistrate Judge's
Opinion and Order and the language of 28 U.S.C. § 1331, Cook provides no
explanation as to why federal question jurisdiction exists in this case.

Like the

Magistrate Judge, we can discern no basis for federal question jurisdiction. District
courts have original federal question jurisdiction over cases "arising under the
Constitution, laws, or treatises of the United States.” 28 U.S.C. § 1331. To determine
whether an action has been properly removed to federal court, the district court must
consider whether the "well-pleaded complaint establishes either that federal law creates
the cause of action or that the plaintiff's right to relief necessarily depends on resolution
of a substantial question of federal law."

Franchise Tax Bd. v. Constr. Laborers

Vacation Trust, 463 U.S. 1, 27-28 (1983). Where the well-pleaded complaint does not
establish such a right, removal to a federal district court based on federal question
jurisdiction is not proper. Id. It also is well-settled that a case may not be removed to a
federal district court based on a federal defense to a complaint, "even if both parties
concede that the federal defense is the only question truly at issue." Caterpillar, Inc. v.

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Williams, 482 U.S. 386, 393, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). PNC's state
court complaint attached to Cook's notice of removal does not demonstrate that the
case arises under the Constitution or laws of the United States. Cook's alleged federal
defenses based on the denial of due process and equal protection rights during his
state court proceedings are insufficient to support removal jurisdiction. Caterpillar, 42
U.S. at 393. This objection is therefore overruled.
Fourth, Cook's objection to the Magistrate Judge's conclusion that 28 U.S.C. §
1443(1) does not support removal jurisdiction is unavailing.

Section 1443(1) is

applicable "[o]nly when State laws violate 'equal civil rights' based on racial grounds . . .
. Broad general allegations of deprivation are not sufficient to permit removal." State of
Ohio v. Denman, 462 F.2d 1292, 1292 (6th Cir. 1972) (citing 28 U.S.C. § 1443(1)); see
also Johnson v. Mississippi, 421 U.S. 213, 219 (1975); Georgia v. Rachel, 384 U.S.
780, 786-94 (1966).

Cook's objections provide no argument or evidence that

demonstrates any violation of a federal right to racial equality.

Further, as the

Magistrate Judge noted, his broad contentions under the Due Process and Equal
Protection Clause do not support removal under Section 1443(1).
Turning now to the new arguments raised by Cook in his objections. To the
extent those arguments were not raised in the petition, they are deemed waived
because a party may not raise arguments for the first time in an objection to a
magistrate judge's report and recommendation. See Murr v. United States, 200 F.3d
895, 902 n.1 (6th Cir. 2000). Nevertheless, even if the arguments are not waived, none
of them provide a proper basis for removal of this case.

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Both 28 U.S.C. § 1367 (supplemental jurisdiction) and 28 U.S.C. § 1441(c)
(joinder of claims) require that the Court have original jurisdiction over a claim prior to
exercising jurisdiction over other state claims. See Ahearn v. Charter Twp., 100 F.3d
451, 456 (6th Cir. 1996). However, as stated above, the Court does not have original
jurisdiction in this case. The objections related to those statutes thus are overruled.
As for 28 U.S.C. § 1441(e), it is inapplicable. This case is a foreclosure matter
involving three defendants whereas Section 1441(e) concerns the removal of actions
arising from a single accident where at least 75 natural persons have died in the
accident at a discrete location. 28 U.S.C. § 1441(e); see also 28 U.S.C. § 1369. As
such, that objection is overruled.
Likewise, 28 U.S.C. § 1443(2) does not provide a basis for removal because it is
applicable only when the party is acting under "color of authority," or in other words, as
an agent of the federal or state government. See City of Greenwood v. Peacock, 384
U.S. 808, 814-15, 824, n. 22 (1966); see also Stapleton v. Butler County Comm'rs, No.
1:09-cv-624, 2009 U.S. Dist. LEXIS 89480, at *5 n.1 (S.D. Ohio Sept. 10, 2009). No
such allegations exist in this case, and the objection is therefore overruled. 2
Finally, Cook appears to make other policy-based arguments for removal.
Specifically, he suggests that the Court would deny his petition for removal because it
"considers itself too busy."

(Doc. 8, p. 3) (quoting Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 344 (1976)).

He also alleges that the Ohio appeal

process has created a "procedural stalemate" that can be alleviated only by removal to

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Further, the Sixth Circuit has indicated that, like Section 1443(1), removal under Section 1443(2) should
be restricted to civil rights cases stated in terms of racial equality. McQueary v. Jefferson Cnty., 819 F.2d
1142 (6th Cir. 1987). As explained in regards to Section 1443(1), Cook has not demonstrated any
violation of a federal right to racial equality, and his objection should be overruled on that basis as well.

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federal court. (Doc. 8, pp. 3-4). However, the Court notes that federal district courts are
of limited jurisdiction, and neither Cook's petition for removal nor his objections provide
a basis for exercising that jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). As such, the Court is without power to remove Cook's case
and his objections are overruled.
IV.

CONCLUSION
For the foregoing reasons, the Magistrate Judge's Report (Doc. 6) is ADOPTED,

and Cook's Objections (Doc. 8) are OVERRULED. It is hereby ORDERED that:
1. The petition for removal of the state court action to this federal court is
DENIED.
2. This matter is DISMISSED from the docket of this Court.
3. The matter is REMANDED back to the state court. See 28 U.S.C. § 1447(c).
Further, the Court certifies pursuant to 28 U.S.C. § 1915 that any appeal of this
Order adopting the Report would not be taken in good faith, and therefore, Cook is
denied leave to appeal In forma pauperis. Cook is advised that he remains free to apply
to proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178
F.3d 800, 803 (6th Cir. 1999), overruling in part, Floyd v. United States Postal Serv.,
105 F.3d 274, 277 (6th Cir. 1997).
IT IS SO ORDERED.
s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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