Bank of New York Mellon v. Charles Barker, III
OPINION AND ORDER: Accordingly, Plaintiff's Motion to Remand to State Court 9 is GRANTED and it is ORDERED that the above-captioned matter be REMANDED to the Multnomah County Circuit Court. Signed on 12/14/16 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BANK OF NEW YORK MELLON,
OPINION AND ORDER
CHARLES BARKER, III, et al.,
This case is at heart a foreclosure action originally brought by Plaintiff Bank of New
York Mellon (the “Bank”) against Defendants in Multnomah County Circuit Court. On June 17,
2016, Defendants filed a Notice of Removal , removing this case from Multnomah County
Circuit Court to the District Court of Oregon. Defendants subsequently filed an Answer,
Counter Claims, and a Cross-Complaint against the Bank and a number of new third-party
defendants . The Bank subsequently filed a Motion for Remand , which I granted on
September 12, 2016 . Third-Party Defendant Federal Deposit Insurance Corporation
(“FDIC”) filed a Motion for Reconsideration  of my Order of Remand  on the grounds
that I have federal-question jurisdiction over this lawsuit because FDIC is a federal agency.
Third-Party Defendants Federal Reserve Bank of New York and Federal Reserve Bank of San
Francisco joined the motion [50, 51]. I granted the Motions for Reconsideration .
Upon further review, I have determined that I do not have diversity or federal question
1 – OPINION AND ORDER
jurisdiction over this action. Therefore, Plaintiff’s Motion to Remand to State Court  is
A defendant may remove to federal court only state-court actions that originally could
have been filed in federal court. 28 U.S.C. § 1441(a) (2011); Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987). A case could have originally been filed in federal court if the court has
diversity jurisdiction or federal-question jurisdiction over the case. 28 U.S.C. § 1331 (1980); 28
U.S.C. § 1332 (2011); Caterpillar, 482 U.S. at 386. There is a “strong presumption against
removal,” however, and the defendant has the “burden of establishing that removal is proper.”
Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (citation
Diversity jurisdiction may form the basis for removal, and it is generally determined from
the face of the complaint. Gould v. Mut. Life Ins. Co. of N.Y., 790 F.2d 769, 773 (9th Cir. 1986).
But an action is not removable based on diversity jurisdiction if the action was originally brought
in the forum state where one or more of the defendants reside. 28 U.S.C. § 1441(b)(2); Lively v.
Wild Oats Mkts., Inc., 456 F.3d 933, 939 (9th Cir. 2006). This is known as the “forum defendant
rule.” Lively, 456 F.3d at 939. If a defendant removes an action in violation of the forum
defendant rule, the action may be remanded to state court if the plaintiff moves to remand the
action within thirty days of its removal to federal court. Id. at 940.
Federal-question jurisdiction may also form the basis for removal. Federal-question
jurisdiction “exists only when a federal question is presented on the face of the plaintiff’s
properly pleaded complaint.” Caterpillar, 482 U.S. at 392 (explaining that this “rule makes the
plaintiff the master of the claim,” allowing her to “avoid federal jurisdiction by exclusive
2 – OPINION AND ORDER
reliance on state law”). Thus, in order for this Court to have subject matter jurisdiction based on
federal-question jurisdiction, the federal question must be presented by the plaintiff’s complaint
as it existed at the time of removal by the defendant. Metro Ford Truck Sales, Inc. v. Ford
Motor Co., 145 F.3d 320, 326-27 (5th Cir. 1988). A “federal question alleged in the defendant’s
third-party claim does not, in and of itself, confer jurisdiction upon the federal court” and federal
jurisdiction does not exist simply because a “federal question has been raised as a matter of
defense or as a counterclaim.” Id. at 372 (citation omitted); see also Burke v. Ortmayer, No. CV04-1610-HU, 2004 WL 2966915, at *3 (D. Or. Dec. 20, 2004), report and recommendation
adopted, No. 04-1610-HU, 2005 WL 433485 (D. Or. Feb. 24, 2005).
Here, it is clear from the face of the Bank’s Complaint that this action was improperly
removed to federal court. This action cannot be removed on the basis of diversity jurisdiction.
Although there may be complete diversity among the parties, Defendant Barker is a citizen of
Oregon. Thus, removal of this action by Defendant Barker violates the forum defendant rule.
Additionally, federal-question jurisdiction is not evident on the face of the Bank’s Complaint,
which only alleges state-law causes of action. While Defendant Barker alleges various federal
counterclaims and claims against third-party defendants, including those against federal entities,
such claims cannot form the basis for federal-question jurisdiction because they were not
presented in the Bank’s Complaint as it existed at the time of removal. While FDIC, Federal
Bank of New York, and Federal Bank of San Francisco may question Oregon’s jurisdiction over
them, that is an issue they will have to resolve with Multnomah County Circuit Court.
3 – OPINION AND ORDER
Accordingly, Plaintiff’s Motion to Remand to State Court  is GRANTED and it is
ORDERED that the above-captioned matter be REMANDED to the Multnomah County Circuit
day of December, 2016.
/s/ Michael W. Mosman_________
MICHAEL W. MOSMAN
Chief United States District Judge
4 – OPINION AND ORDER
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