Countrywide Home Loans, Inc. v. Young et al

Filing 2

OPINION AND ORDER granting 1 Motion for Leave to Proceed in forma pauperis. This case is remanded to the state court. Signed by Judge William K. Sessions III on 4/4/2013. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Countrywide Home Loans,
Inc.,
Plaintiff,
v.
Kelli-Ann Young, Donna
B. Young,
Defendants.

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Case No. 2:13-cv-50

OPINION AND ORDER
(Doc. 1)
Defendant Kelli-Ann Young, proceeding pro se, seeks to
remove a foreclosure action from state court.

Now before

the Court is Ms. Young’s motion for leave to proceed in
forma pauperis.

Because the affidavit in support of the

motion satisfies the requirements of 28 U.S.C. § 1915, the
motion for leave to proceed in forma pauperis is GRANTED.
However, for reasons set forth below, this case is REMANDED
to the state court.
Factual Background
On October 24, 2008, plaintiff Countrywide Home Loans,
Inc. (“Countrywide”) filed a Complaint for Foreclosure in
Windham Superior Court.

The Complaint pertains to real

property purchased by Ms. Young in 2001.

The property is

located at 222 Valley View Road in Dover, Vermont.

On March 27, 2013, Ms. Young filed a Notice of Removal
in this Court, together with her motion for leave to proceed
in forma pauperis.

The Notice states that removal is sought

pursuant to 28 U.S.C. § 1441, and includes a copy of the
Complaint for Foreclosure.

The Notice includes no other

factual statements, legal citations, or state court
records.1
Discussion
The federal removal statute permits a state court
defendant to remove to federal court “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction.”

28 U.S.C. §

1441(a).

The original jurisdiction of federal courts is

limited.

See Keene Corp. v. United States, 508 U.S. 200,

207 (1993).

As a consequence, “removal jurisdiction exists

in a given case only when that jurisdiction is expressly
conferred on the courts by Congress.”

Fed. Ins. Co. v. Tyco

Int’l Ltd., 422 F. Supp. 2d 357, 367 (S.D.N.Y. 2006)

1

The federal removal statute, 28 U.S.C. § 1446(a), requires that
the removing party “shall file in the district court of the United
States . . . a short and plain statement of the grounds for removal,
together with a copy of all process, pleadings, and orders served upon
such defendant or defendants in such action.” Although Ms. Young’s
filing may not strictly comply with the statute, the Court is not
remanding on that basis.

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(internal quotation marks and citation omitted).
Federal subject matter jurisdiction is available when a
“federal question” is presented, or when plaintiffs and
defendants are citizens of different states and the amount
in controversy exceeds $75,000.
1332.

See 28 U.S.C. §§ 1331,

Although the removal statute provides “the procedural

mechanism for transferring a case from one court to another,
. . . the removal statute [itself] is not the source of
subject matter jurisdiction.”

Orange County Water Dist. v.

Unocal Corp., 584 F.3d 43, 49 (2d Cir. 2009).

Furthermore,

federal subject matter jurisdiction may not arise out of a
defendant’s defense or counterclaim, whether actual or
anticipated, and is instead based solely upon the
plaintiff’s complaint.

See New York v. Shinnecock Indian

Nation, 686 F.3d 133, 138 (2d Cir. 2012).
Here, Countrywide’s foreclosure complaint does not cite
any provision of federal law, nor does it suggest any form
of federal cause of action.

Indeed, the state court

proceeding against Ms. Young appears to be a standard
foreclosure action based entirely upon state law.
Consequently, there is no basis for federal question
jurisdiction.

See 28 U.S.C. § 1331.

3

As this case does not arise under federal law, the
Court must consider diversity jurisdiction.
§§ 1332(a), 1441(b).

See 28 U.S.C.

The removal statute allows for removal

on the basis of diversity jurisdiction only if none of the
defendants “is a citizen of the State in which such action
is brought.”

See 28 U.S.C. § 1441(b)(2).

According to the

submissions before the Court, Ms. Young is a resident of
West Dover, Vermont.

Because she is a Vermont resident

seeking to remove a case to the federal court in Vermont,
she cannot avail herself of the removal provision in §
1441(b).

See Gardner and Florence Call Cowles Found. v.

Empire Inc., 754 F.2d 478, 480-81 (2d Cir. 1985).
The Court therefore finds that there is no valid basis
upon which this case may be removed from state court.
Pursuant to the removal statute, a removed case must be
remanded “[i]f at any time before final judgment it appears
that the district court lacks subject matter jurisdiction.”
28 U.S.C. § 1447(c).

This matter is therefore REMANDED to

the state court.
Conclusion
For the reasons set forth above, Ms. Young’s motion for
leave to proceed in forma pauperis (Doc. 1) is GRANTED, and

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this case is REMANDED to the Vermont Superior Court, Windham
Unit, Civil Division.
Dated at Burlington, in the District of Vermont, this
4th day of April, 2013.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court

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