HSBC Mortgage Services, Inc. v. Robinson

Filing 17

ORDER GRANTING PLAINTIFF'S MOTION 15 TO REMAND. Signed by Chief Judge J. Daniel Breen on 11/5/2014. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
HSBC MORTGAGE SERVICES, INC.,
Plaintiff,
v.

No. 14-1107

DONNA MARIE ROBINSON,
Defendant.
_____________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION TO REMAND
_____________________________________________________________________________
Before the Court is the Plaintiff, HSBC Mortgage Services, Inc.’s (“HSBC”),
September 8, 2014 motion to remand. (Docket Entry (“D.E.”) 15). The Defendant, Donna
Marie Robinson (“Robinson”), filed a response on September 26, 2014. (D.E. 16.) For the
reasons stated herein, the Court GRANTS HSBC’s motion and REMANDS this matter to the
General Sessions Court of Madison County, Tennessee.
Background
On February 10, 2014, HSBC initiated a detainer summons action against Robinson in
the Madison County General Sessions Court after she failed to vacate a residence, located at
2441 Steam Mill Ferry Road, Jackson, Tennessee, that HSBC had foreclosed on in October
2013. (D.E. 15-1 at 1.) On May 9, 2014, Robinson filed a Notice of Removal in both Madison
County General Sessions Court and the United States District Court for the Western District of
Tennessee. (D.E. 1.) The notice in this Court stated that removal was based upon 28 U.S.C.
§ 1331 (federal question jurisdiction) because Plaintiff had allegedly violated the Fair Debt

Collection Practices Act, 15 U.S.C. § 1692 et seq. (the “FDCPA”), in foreclosing on Robinson’s
residence. (Id.)
Legal Standard and Analysis
HSBC alleges that removal is improper because either Robinson’s notice of removal was
untimely, or the Court lacks subject matter jurisdiction over the detainer summons action. (D.E.
15-1 at 2–8.) Defendant maintains that it is HSBC’s motion to remand that is untimely, and that
the Court does have subject matter jurisdiction over her claims against Plaintiff because they
arise under a federal statute. (D.E. 16 at 2–5.)
A.

Timeliness of Removal

The procedures for removing a civil action to federal court are provided by
28 U.S.C. § 1446, which states:
The notice of removal of a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or
proceeding is based, or within 30 days after the service of summons upon the
defendant if such initial pleading has then been filed in court and is not required
to be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b)(1). However, a party seeking remand because of a procedural defect other
than a lack of subject matter jurisdiction must file a motion “within 30 days after the filing of the
notice of removal under section 1446(a).” 28 U.S.C. § 1447(c); Caterpillar Inc. v. Lewis, 519
U.S. 61, 76 (1996) (“[Congress] specified a short time, 30 days, for motions to remand for
defects in removal procedure[.]”). Parties failing to bring a motion to remand within this thirtyday window waive any procedural arguments for remand that are not based on a lack of subject
matter jurisdiction. See Music v. Arrowood Indem. Co., 632 F.3d 284, 287 (6th Cir. 2011)
(“[B]y failing to timely move for remand, [Plaintiff] forfeited his objection regarding the alleged
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untimeliness of [Defendant’s] removal.”).

Here, HSBC did not raise the untimeliness of

Robinson’s notice of removal until September 8, 2014, more than thirty days after Robinson filed
her May 9, 2014 notice with the Court. Therefore, HSBC’s motion to remand on the basis of
untimely removal is DENIED. 1
B.

Subject Matter Jurisdiction

Timeliness is just one requirement that must be satisfied before a civil action can be
removed to federal court. A defendant can remove a matter only if it is one over which the
federal court could have exercised original jurisdiction. 28 U.S.C. §§ 1441, 1446; Eastman v.
Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006) (“The provisions of section 1441(b)
require a defendant to demonstrate that a district court would have original jurisdiction over a
civil action in order to invoke the federal court’s removal jurisdiction.”). A party seeking to
invoke the jurisdiction of the federal courts bears the burden of establishing that subject matter
jurisdiction exists. Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 474 (6th Cir. 2008). Because
a lack of jurisdiction “would make any decree in the case void and the continuation of the
litigation in federal court futile, the removal statute should be strictly construed and all doubts
resolved in favor of remand.” Eastman, 438 F.3d at 549 (quoting Brown v. Francis, 75 F.3d 860,
864–65 (3d Cir. 1996)). A notice of removal must contain “a short and plain statement of the
grounds for removal . . . .” 28 U.S.C. § 1446(a).
Robinson’s notice of removal states that this Court has subject matter jurisdiction
pursuant to 28 U.S.C. § 1331 because HSBC violated the FDCPA when it foreclosed on her
1

The Court notes that HSBC failed to provide any evidence as to when Robinson was first served with the
detainer summons that is sufficient to trigger the 30-day removal period under 28 U.S.C. § 1446(b)(1). Submitted
with HSBC’s motion to remand was a copy of the detainer summons, but the “Service” section was blank. (D.E. 152.) Robinson provided a copy of an April 22, 2014 letter she received from Robert S. Coleman, Jr., one of HSBC’s
attorneys, which enclosed the detainer summons. (D.E. 1-1.) If this was the first time Robinson received the
detainer summons, her May 9, 2014 notice of removal would have been timely under 28 U.S.C. § 1446(b)(1).

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residence. (D.E. 1.) HSBC counters that the Court lacks subject matter jurisdiction under
§ 1331 because there was no federal claim alleged in the February 10, 2014 detainer summons.
(D.E. 15-1 at 5–8.)
“Federal district courts have original jurisdiction over ‘all civil actions arising under the
Constitution, laws, or treaties of the United States.’” Roddy v. Grand Trunk Western R.R. Inc.,
395 F.3d 318, 322 (6th Cir. 2005) (quoting 28 U.S.C. § 1331). To determine if a civil action
arises under federal law, courts apply the “well-pleaded complaint” rule. Id. This rule requires
the court to examine a complaint’s well-pleaded allegations and ignore any potential defenses, as
according to the rule, the plaintiff is the master of its complaint. Id. “As a general rule, absent
diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege
a federal claim.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6 (2003). 2
The initial pleading in this action, the February 10, 2014 detainer summons, arises solely
under Tennessee law. See Tenn. Code. Ann. § 29-18-101 et seq. In her notice of removal,
Robison alleges that HSBC violated the FDCPA, a federal statute. (D.E. 1.) However, the
FDCPA claims are not presented in the body of Plaintiff’s detainer summons. Roddy, 395 F.3d
at 322. At best, the federal statutory claims are potential defenses or counterclaims, which
cannot be the basis for federal question jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 60
(2009). Because HSBC has not affirmatively alleged a federal claim in the detainer summons,

2

There are exceptions to the well-pleaded complaint rule, such as the artful-pleading doctrine, the
complete-preemption doctrine, and the substantial-federal-question doctrine, which “may force a plaintiff into
federal court despite the plaintiff’s desire to proceed in state court.” Mikulski v. Centerior Ener. Corp., 501 F.3d
555, 560 (6th Cir. 2007) (en banc). None of those exceptions apply here.

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Anderson, 539 U.S. at 6, this matter must be remanded to the General Sessions Court of Madison
County, Tennessee. 3
Conclusion
HSBC’s argument favoring remand based on untimeliness was waived since its motion
was filed more than thirty days after Robinson’s notice of removal. However, this matter is
remanded to the General Sessions Court of Madison County, Tennessee because the Court lacks
subject matter jurisdiction over the state detainer summons action. Therefore, HSBC’s motion to
remand is GRANTED.
IT IS SO ORDERED this 5th day of November, 2014.

s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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HSBC, in a footnote, contends that should Robinson’s notice of removal be construed to allege removal
based on diversity jurisdiction, the matter is still not removable under 28 U.S.C. § 1441(b)(2) because Robinson is a
Tennessee citizen. (D.E. 15-1 at 8 n.1.) Robinson’s notice states that removal jurisdiction is predicated solely on 28
U.S.C. § 1331, (D.E. 1), and the time to amend the notice of removal has expired. See Uppal v. Elec. Data Sys., 316
F. Supp. 2d 531, 535–36 (E.D. Mich. 2004) (holding that the removing party waived its right to assert diversity
jurisdiction as an alternative ground for removal because it failed to amend its notice of removal within thirty days
after service of the initial pleading as provided for by 28 U.S.C. § 1446(b)). Based on the Court’s determination
above, it need not address the Plaintiff’s alternative argument.

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