Del Rossi et al v. SunTrust Mortage, Inc. et al

Filing 18

MEMORANDUM OPINION. See for complete details. Signed by District Judge M. Hannah Lauck on 02/18/2016. Clerk mailed copy to pro se Plaintiff and Prince George Circuit Court. (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

GARYM. DEL ROSSI
and

SANDRA M. DEL ROSSI,
Plaintiffs,

Civil Action No. 3:15cv334

V.

SUNTRUST MORTGAGE, INC.
etaLy
Defendants.
MFMORANDUM OPINION

This matter comes before the Court onDefendant SunTrust Mortgage, Inc.'s

("SunTrust") Motion to Remand this action to the Circuit Court of Prince George County,

Virginia, Motion for Award ofAttorneys' Fees and Costs pursuant to 28 U.S.C. §1447(c),^ and
Motion to Dismiss for Lack ofJurisdiction (ECF Nos. 2, 3, 11); and. Plaintiffs

Motion to

Dismiss and Withdraw Removal Pursuant to Rule 41" and Motion to Vacate the Writ of

Possession and Subsequent Eviction (ECF Nos. 8,13). The matters are ripe for disposition.

The Court dispenses with oral argument because the materials before the Court adequately

present the facts and legal contentions, and argument would not aid the decisional process. For
^That statute states, in pertinent part: "Ifat any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded. An order

remanding the case may require payment ofjust costs and any actual expenses, including
attorney fees, incurred as a result ofthe removal." 28 U.S.C. § 1447(c).

^The pleadings, including the Notice of Removal, indicate that only PlaintiffGary Del
Rossi, not Plaintiff Sandra Del Rossi, sought removal ofthis matter. (See, e.g., Not. Removal 1,
ECF No. 1.) This has no effect on the Court's analysis ofthe Motion to Remand. For ease of
reference, and in the absence of information affirmatively demonstrating Sandra Del Rossi s
absence from this case, the Court refers to the Plaintiffs collectively.

the reasons that follow, the Court grants SunTrust's Motion to Remand and denies SunTrust's
Motion for Award ofAttorneys' Fees. (ECF Nos. 2,3.) The Court denies as moot SunTrust's
Motion to Dismiss, Plaintiffs' Motion to Dismiss, and Plaintiffs' Motion to Vacate. (ECF
Nos. 8,11,13.)

T Faphial and Procedural Background

The dispute between the parties stems from aforeclosure sale ofPlaintiffs' former home
(the "Property") and involves acomplicated procedural history throughout anumber ofcourts.
In May 2013, Plaintiffs, anticipating foreclosure, filed suit against SunTrust and other defendants
in the Circuit Court ofPrince George County (the "Circuit Court"). Plaintiffs subsequently took
avoluntary nonsuit in the Circuit Court action. On January 16, 2014, SunTrust foreclosed on the
Property. SunTrust was the highest bidder at the foreclosure sale, and after purchasing the
Property, SunTrust instituted an unlawful detainer action in the General District Court ofPrince
George County (the "General District Court"). On September 3,2014, the General District
Court awarded possession to SunTrust. Plaintiffs did not appeal the judgment ofthe General
District Court.

On September 16,2014, Plaintiffs filed for bankruptcy in the United States Bankruptcy
Court for the Eastern District ofVirginia (the "Bankruptcy Court"), triggering an automatic stay

oftheir eviction pursuant to 11 U.S.C. §362(a).' On October 10,2014, SunTrust filed amotion
for relief from the stay in the Bankruptcy Court. On the same date that Plaintiffs filed their

petition in the Bankruptcy Court, Plaintiffs, by counsel, brought anew civd action against
Defendants for fraud, breach ofcontract, and quiet title in the Circuit Court seeking to void the
3Section 362(a) provides that the filing of certain types ofbankruptcy petitions "operates

as astay, applicable to all entities" of, inter alia, the collection ofdebts or possession ofthe
property of the estate. 11 U.S.C. §362(a).

foreclosure. On November 21,2014, SunTrust filed aDemurrer and aPlea in Bar in the Circuit
Court. On December 2,2014, the Circuit Court heard argument on the demurrer, the plea mbar,
and other motions, but deferred its ruling until the Bankruptcy Court had ruled on the motion for
relief from the stay.

On February 25, 2015, the Bankruptcy Court heard argument on SunTrust's motion for

reUeffrom the stay. At the hearing, counsel for Plaintiffs and SunTrust represented that they had
come to an agreement whereby SunTrust would gain possession ofthe Property in sixty days and
Plaintiffs would proceed with their bankruptcy case. However, Plaintiffs and SunTrust could not

agree to aconsent order to this effect, and SunTrust renewed its demurrer and plea in bar in the
Circuit Court. On April 13, 2015, the Circuit Court sustained SunTrust's demurrer and plea in

bar; denied Plaintiffs leave to amend their complaint; and, instructed the parties to submit an
order ofdismissal following the Bankruptcy Court's ruling on the motion for relief from stay.

On May 6,2015, the Bankruptcy Court granted SunTrust's motion for relief, making it

effective May 13,2015. SunTrust circulated aconsent order to this effect, but Plaintiffs' counsel
did not endorse the order.^ After Plaintiffs' additional attempt to extend the stay, the Bankruptcy
Court entered its own order granting SunTrust relief from the stay. On May 26, 2015, in

accordance with the Circuit Court's decision to withhold ruling until the Bankruptcy Court lifted

the stay, SunTrust filed amotion for entry ofafinal order dismissing the case in the Circuit
Court. The Circuit Court scheduled ahearing on the final order for June 17, 2015. Plamtiffs'

Attorney Bemice Stafford-Turner seems to have represented Plaintiffs in the early
pendency oftheir Circuit Court case. In May 2015, Plaintiffs appear to have filed adocument

seeking arelief from the stay in part because their attorney was "no longer mgood standmg with
the Virginia Bar" and was seeking to obtain substitute counsel. (Mem. Supp. Mot. Remand
Ex. 8, at 6, ECF No. 4-8.) Sometime later, attorney L. Wendell Allen, Esq. seems to become
involved onPlaintiffs' behalf intheCircuit Court proceeding.

counsel indicated thathe would soon endorse a dismissal order to obviate the need forthe
hearing.

However, instead ofendorsement ofa dismissal order by counsel, Plaintiffs, potentially

acting without their attorney,^ filed a"Notice ofRemoval and Federal Stay ofProceedings
Pursuant to 28 USC [sic] 1446(a)"^ inan attempt to remove the action to this Court. (Not.

Removal 1, ECF No. 1.) Plaintiffs attach to their notice ofremoval a new "Letter ofComplaint''

that alleges violations ofthe Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. §1692,
et seq. Plaintiffs state that because their action "necessarily arises under" the FDCPA, this Court
has "original jurisdiction" over the action pursuant to 28 U.S.C, § 1441, (Not. Removal 3.)

^As stated by the Court in its August 5,2015 Order, an ambiguity exists as to whether
Plaintiffs proceeded by coimsel orpro se in this action. (Aug. 5, 2015 Order, ECF No. 7.) Gary
Del Rossi signed the "Notice ofRemoval" pro se. (Not. Removal 1.) However, the Court s
docket reflects lead covinsel of record as L. Wendell Allen, Esq. and shows that he receives

notices ofelectronic filings for each document. Further, onJune 10, 2015, counsel for SunTrust

specifically discussed the purported removal in aletter to Mr. Allen, alerting him to the potential

for a motion for sanctions.

^That statute states, in pertinent part:

(a) Generally.-A defendant or defendants desiring to remove any civil action
from a Statecourt shall file in the district court of the United States for the district
and division within which such action is pending a notice of removal signed

pursuant to Rule 11 ofthe Federal Rules ofCivil Procedure and containing a short
and plain statement ofthe grounds for removal, together with a copy ofall
process, pleadings, and orders served upon such defendant or defendants in such
action.

28 U.S.C. § 1446(a).

SunTmst^ timely moved to remand this action pursuant to 28 U.S.C. §1447(c) to the

Prince George Circuit Court on the ground that aplaintiffmay not remove an action to federal
court under §1441(a). SunTrust further moved the Court to award itreasonable attorney's fees
for the fees and costs incurred in seeking the remand. Plaintiffs initially did not respond.

However, Plaintiffs ultimately filed aresponse pursuant to the Court's August 5,2015 Order to
do so. SunTrust replied. The Court dispenses with oral argument because the materials before

the Court adequately present the facts and legal contentions, and argument would not aid the
decisional process. Accordingly, this matter is ripe for disposition.
II. Standard of Review

A.

Removal and Remand

Title 28, United States Code § 1447(c) states in relevant part: "Ifatany time before final

judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded." 28 U.S.C. § 1447(c). "The party seeking removal bears the initial burden of

establishing federal jurisdiction." Abraham v. Cracker Barrel Old Country Store, Inc.,
No.3:llcvl82,2011 WL 1790168,at*l (E.D. Va. May9, lOW)

Mulcahey v. Columbia

Organic Chem. Co., 29 F.3d 148,151 (4th Cir. 1994)). No presumption favoring the existence
offederal subject matter jurisdiction exists because federal courts have limited, not general,

jurisdiction. Id. (citing Pinkley Inc. v. City ofFrederick, 191 F.Sd 394, 399 (4th Cir. 1999)).
Courts must construe removal jurisdiction strictly. Id. (citing Mulcahey, 29 F.3d at 151.) "If

federal jurisdiction is doubtful, aremand is necessary." Id. (quoting Mulcahey, 29 F.3d at 151.)

^No other defendant from the original state court action has made an appearance inthe

removal action. Itappears that none ofthe defendants have been given notice ofthe Plaintiffs'

attempted removal. {See Not. Removal 2(noting that the Notice of Removal had been provided
tothe Clerk ofthe Circuit Court and counsel for SunTrust in the bankruptcy action).)

A defendant may remove a civil action initially filed in state court if the plaintiff could
have originally brought the action in federal court. Id. at *2 (citing Yarnevic v. Brink's Inc., 102

F,3d 753, 754 (4th Cir. 1996));see 28 U.S.C. § 1441(a). Section 1441 dictates that only "the
original defendant" or defendants may remove an action. Palisades Collections LLC v. Shorts,

552 F.3d 327, 333-34 (2008); cf Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005)
("By enacting the removal statute. Congress granted a right to a federal forum to a limited class
of state-court defendants.''^ (emphasis added)).
B.

Award of Attorney^s Fees on Remand

Section 1447(c) provides that "[a]n order remanding the case may require payment of just
costs and any actual expenses, including attorney's fees, incurred as a result of the removal." 28
U.S.C. § 1447(c). Whether to award attorney's fees lies within the court's discretion, but the
court must be guided by the "reasonableness of the removal." Martin, 546 U.S. at 139, 141.

"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. Conversely,
when an objectively reasonable basis exists, fees should be denied." 7(jf. at 141. Unusual

circumstances may include the non-removing party's "delay in seeking remand or failure to
disclose facts necessary to determine jurisdiction." Id.
C.

Obligation to Construe Pro se Pleadings Liberally^

District courts have a duty to construe pro se pleadings liberally. Bracey v. Buchanan, 55

F, Supp. 2d 416,421 (E.D. Va. 1999). However, a pro se plaintiff must nevertheless allege facts
sufficient to state a cause of action. Id. (citation omitted). The Court cannot act as a pro se

o

Despite Attorney Allen's presence on this Court's docket sheet, no confirmation exists
that Plaintiffs proceed in any way other than pro se. In the interest ofjustice, the Court will
liberally construe Plaintiffs' filings as if they were filed pro se.

litigant's "advocate and develop, sua sponte, statutory and constitutional claims"that the litigant
failed to raise on the face of the complaint. Newkirk v. Circuit Court ofHampton, No.
3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014). In the Court's consideration of a

motion to remand over the objection of a pro se party, the litigant's pro se status "does not
prevent the [C]ourt from imposing sanctions." Miller v. Baker, No. 5:09cv00094, 2010 WL

3585423, at *1 (W.D. Va. Sept. 9,2010); accord Fed. Nat'l Mortg. Ass'n v. Young, No.
2:12cv471, 2013 WL 5488513, at *7 (E.D. Va. Aug. 12, 2013). However, the litigant'spro se
status may factor into the Court's analysis of reasonableness. See Szanto v. Szanto Revocable Tr.

of1991, No. C 10-1364, 2010 WL 2280356, at *2 (N.D. Cal. June 7, 2010).
IIL Analysis

A.

Section 1441 Does Not Contemplate Removal of this Action bv the Plaintiffs

In unmistakable terms, § 1441 does not contemplate removal of this action by the
Plaintiffs. The statute plainly states that "the defendant or the defendants" may remove an action

over which the federal districtwould have had original jurisdiction. 28 U.S.C. § 1441(c). Here,
Plaintiffs clearly sought removal of this action. The state court complaint attached to the Notice

of Removal clearly denotes Gary and Sandra Del Rossi as Plaintiffs, and they remain the
Plaintiffs in this attempted removal. Accordingly, the Court must grant the Motion to Remand.

B.

Plaintiffs' Pro Se Status and Mistaken Belief that They Removed the General
District Court Case Insulates Them from Sanctions in this Instance

Plaintiffs' pro se status and their explanation that they intended to remove the General

District Court case, in which they proceeded as defendants, allow them to escapethe imposition
of attorney's fees in this instance. Plaintiffs clearly lacked a lawful basis for removal. The

statutesthat Plaintiffsthemselves cite plainly reveal the limitation that only defendants may
remove an action. {See, e.g.. Not. Removal 1 (citing 28 U.S.C. § 1446 ("A defendant or

defendants desiring to remove any civil action from a State court shall file in the district court of

the United States for the district and division within which such action is pending a notice of

removal

" (emphasis added).) Further, courts routinely confirm the rule that only original

defendants may remove. See Martin, 546 U.S. at 140 ("By enacting the removal statute.
Congress granted a right to a federal forum to a limited class of state-court defendants"
(emphasis added)).

However, Plaintiffs' actions, while improper, were not necessarily unreasonable for two
reasons. First, while Plaintiffs' possible pro se status alone does not insulate them from

sanctions whenthey have actedunreasonably, see Miller, 2010 WL 3585423, at *1, neithercan

this Court ignore Plaintiffs' "lackof understanding as to the specialized procedural hurdles
involved in removaljurisdiction." Szanto, 2010 WL 2280356, at *2. Tolerance of miscues

seems especially warranted given what may have beena changein lead counselover which

Plaintiffs lacked control. Second, Plaintiffs averthat they actually wanted to remove the case in

which they were defendants, butmistakenly attempted to remove the case in which they were
plaintiffs. The case numbers of the actions in state court reveal thatonly a single letter and
number distinguished the two, (See PL Reply Mot. Remand 1, ECF No. 10 (noting that the
General District Court case number was GV14000967-00, while the Circuit Court case number
was CVl4000767-00).) Plaintiffs' involvement in two concurrent actions in two different state

courts, with very similar case numbers, alongside theirpro se status, provide a sufficiently
reasonable basis for their erroneous removal.

Accordingly, given Plaintiffs' pro se status and their reasonable error in removing the

wrong case, the Court finds that the Plaintiffs' actions do not warrant the award of attorney's
fees. The Courtdenies SunTrust's Motionfor Award of Attorneys' Fees.

IV. Conclusion

For the foregoing reasons, the Court grants the Motion to Remand. (ECF No. 2.) The
Court denies the Motion for Attorney's Fees. (ECF No. 3.) Because the Court remands this

case, the Court will deny SunTrust's Motion to Dismiss (ECF No. 11); Plaintiffs' Motion to
Dismiss (ECF No, 8) and Plaintiffs' Motion to Vacate (ECF No. 13) as moot.
An appropriate Order shall issue.

/s// / U
\l

M. HannA^ti
United States District Judge
Richmond, Virginia
Date: Z''/8''I6