Caro v. Bank Of America, NA et al

Filing 21

MEMORANDUM OPINION AND ORDER GRANTING 8 PLAINTIFF'S MOTION TO REMAND AND DISMISSING 4 PLAINTIFF'S PETITION FOR CONTEMPT WITHOUT PREJUDICE. The plaintiff's petition for contempt (ECF No. 4) and motion for leave to file a reply 10 are DISMISSED WITHOUT PREJUDICE to be re-filed in state court if appropriate. Signed by Senior Judge Frederick P. Stamp, Jr on 6/23/2014. (copy to counsel of record via CM/ECF; copy to Circuit Clerk) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GREGORY M. CARO,
Plaintiff,
v.

Civil Action No. 5:14CV38
(STAMP)

BANK OF AMERICA, N.A. and
GOLDEN & AMOS, PLLC,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND
AND DISMISSING PLAINTIFF’S PETITION
FOR CONTEMPT WITHOUT PREJUDICE
I.

Background

Plaintiff, Gregory Caro, commenced this civil action by filing
a complaint in the Circuit Court of Ohio County, West Virginia. In
this complaint, the plaintiff alleges that the defendants, Bank of
America,

N.A.

(“BANA”)

and

Golden

wrongfully foreclosed on his property.

&

Amos

PLLC

(“Golden”),

The complaint raises both

federal and state based claims.
On July 22, 2003, the plaintiff purchased land next to his
home in Wheeling, Ohio County, West Virginia.

To purchase the

property, the plaintiff secured a loan from BANA for $250,000.00.
When the deed of trust securing this loan was filed, the firm of
Sacco and Pizzuti, PLLC was appointed as the trustee.

Some time

later, Sacco and Pizzuti, PLLC was replaced by defendant Golden.
In Spring 2012, the plaintiff allegedly became delinquent on his
loan leading BANA to foreclose on the property.

Thereafter, BANA, through Golden, sold the property at public
auction to the Federal National Mortgage Association.

Soon after

the sale, BANA asked the plaintiff to vacate his home.

Upon

receiving the request, plaintiff, through his attorney, telephoned
BANA and advised that the defendant had wrongfully foreclosed on
the plaintiff’s home.

The plaintiff alleges BANA then instructed

him not to make timely payments on his mortgage loan so that he
would qualify for refinancing and that BANA failed to apply
payments the plaintiff did make.
On May 2, 2012, BANA conveyed the property by quit claim deed
back to the plaintiff.

After reconveying the property, BANA

continued to contact the plaintiff about the possibility of future
foreclosure.

The plaintiff contacted BANA and requested that all

future communications be directed to his attorney.
request,

the

plaintiff

allegedly

still

Despite the

received

written

correspondence, email, and telephone calls from BANA.
On February 12, 2014, the plaintiff filed an ex-parte motion
for a temporary restraining order (“TEMPORARY RESTRAINING ORDER”)
against BANA.

The Circuit Court of Ohio County, West Virginia,

entered the order, enjoining BANA from any subsequent foreclosure
activity. In the TEMPORARY RESTRAINING ORDER, the court ordered an
evidentiary hearing to take place on March 6, 2014.

On the day of

the

petition

evidentiary

hearing,

the

plaintiff

2

filed

a

for

contempt

against

BANA

for

allegedly

violating

the

TEMPORARY

RESTRAINING ORDER.
On March 20, 2014, BANA removed the action to this Court.
BANA did not aver that defendant Golden consented to removal, but
did assert that “Golden does not object . . . .”

ECF No. 1 ¶ 14.

Thereafter, the plaintiff filed a motion for remand.

In the

motion, the plaintiff argues that this action was improperly
removed because BANA: (1) relied in error on 28 U.S.C. § 1441(c)(2)
as allowing an exception to the unanimity of consent rule; (2)
waived its right to remove by accepting service of the complaint
and by consenting to the injunctive relief requested by the
plaintiff in his complaint; and (3) filed its notice of removal 42
days after service on its trustee.
briefed.

The motion is now fully

For the reasons stated below, this Court grants the

plaintiff’s motion to remand.
II.

Applicable Law

A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.

28 U.S.C. § 1441.

Federal

courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C. § 1331
and (2) those involving citizens of different states where the
amount in controversy exceeds $75,000.00, exclusive of interests
and costs pursuant to 28 U.S.C. § 1332(a).

3

The party seeking removal bears the burden of establishing
federal jurisdiction. See Mulcahey v. Columbia Organic Chems. Co.,
Inc., 29 F.3d 148, 151 (4th Cir. 1994).

Removal jurisdiction is

strictly construed, and if federal jurisdiction is doubtful, the
federal court must remand.

Id.

Once an action is removed, a plaintiff may challenge removal
by moving to remand the case to state court.

Remand to state court

is not only appropriate for lack of subject matter jurisdiction,
but also if there is a defect in the removal process.
III.

Discussion

BANA removed this action to federal court based on 28 U.S.C.
§

1331

federal

question

jurisdiction.

Federal

question

jurisdiction is appropriately exercised over “all civil actions
arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Here, the plaintiff alleges violations
of two federal statutes: (1) the Real Estate Settlement Procedures
Act and (2) the Fair Debt Collection Practices Act. 12 U.S.C.
§§ 2605(e) & (k) and 15 U.S.C. § 1692(g) (respectively).

Although

this Court believes removal of this action was substantively
merited, the plaintiff may still challenge removal for a procedural
defect.
Here, the plaintiff has timely filed a motion to remand this
action arguing that BANA violated the unanimity of consent rule,
which requires “all defendants who have been properly joined and

4

served [to] join in or consent to the removal of the action.”1
U.S.C. § 1446(b)(2)(A).

28

The plaintiff argues that BANA violated

the unanimity of consent rule by failing to have Golden, BANA’s codefendant, join in or file a written consent to the removal.
Having acknowledged this defect in their notice of removal,
BANA argues Golden’s consent was not required because this case
falls under an exception to the unanimity of consent rule created
by § 1441(c).

To determine if BANA qualifies for the exception

created by § 1441(c), the language of the statute must be examined.
Section 1441(c) states that:
(1)

If a civil action includes(A) a claim arising under the Constitution,
laws, or treaties of the United States (within
the meaning of section 1331 of this title,)
and
(B) a claim not within the original or
supplemental jurisdiction of the district
court or a claim that has been made
nonremovable by statute, the entire action may
be removed if the action would be removable
without the inclusion of the claim described
in subparagraph (B).
(2) Upon removal of an action described in paragraph(1),
the district court shall sever from the action all claims
described in paragraph (1)(B) and shall remand the
severed claims to the state court from which the action
was removed.
Only defendants against whom a claim
described in paragraph (1)(A) has been asserted are
required to join in or consent to the removal under
paragraph (1).

1

A plaintiff has 30 days to file a motion to remand after a
defendant files a notice of removal.
28 U.S.C. § 1447(c).
Defendant’s notice of removal was filed on March 20, 2014 (ECF No.
1) and the motion to remand was filed on April 18, 2014 (ECF No.
8). Thus, it appears that the plaintiff timely filed the notice of
removal and no party has contested this assertion.
5

BANA suggests that the second sentence of § 1441(c)(2) should
be read alone, without regard to § 1441(c)(1).

In support of its

argument, BANA cites Moore v. City of Philadelphia, No. 12-3823,
2012

U.S.

Dist.

LEXIS

122786

(E.D.

Pa.

Aug.

29,

2012),

an

unpublished opinion from the United States District Court for the
Eastern District of Pennsylvania.

In Moore, the court found that

§ 1441(c) excused the unanimous consent requirement in cases where
the plaintiff asserted federal claims against one defendant and
only state law claims over which the federal court had supplemental
jurisdiction against the other defendants.

Id. at *4.

This reading of § 1441(c) is incorrect because it ignores the
last

words

of

28

U.S.C.

§

1441(c)(2)

which

provides

for

an

exception to the unanimity of consent rule for all cases “removed
under paragraph (1).”

Thus, the exception to the unanimity rule

that is created in § 1441(c)(2) only applies to cases that include
a claim involving a federal question and a claim in which the court
does not have original or supplemental jurisdiction.
This Court agrees with the plaintiff’s reading of the statute
and

joins

a

majority

of

courts

which

have

found

that

the

Jurisdiction and Venue Clarification Act foreclosed the possibility
of removal under § 1441(c) when state law claims would otherwise
come within the court’s supplemental jurisdiction.

Ettlin v.

Harris, No. SACV 13-1515-DOC (JPRx), 2013 U.S. Dist. LEXIS 170526,
at *6 (C.D. Cal. Nov. 22, 2013); see e.g., Moore v. Svehlak, No.

6

ELH-12-2727, 2013 U.S. Dist. LEXIS 97329, at *33-34 (D. Md. July
11, 2013) (holding that § 1441(c) does not apply because all claims
are subject to the court’s original or supplemental jurisdiction);
Brooks v. Foglio, No. 13-2504 (JEI/JS), 2013 U.S. Dist. LEXIS
93242, at *14-15 (D. N.J. July 2, 2013) (holding that when the
court has supplemental jurisdiction over an action “the exception
to the unanimity rule provided in § 1441(c) does not apply”);
Huston v. Affinity Med. Solutions, Inc., No.C12-5202 THE, 2012 U.S.
Dist. LEXIS 173998, at *5 (N.D. Cal. Dec. 6, 2012) (“This Court
therefore has supplemental jurisdiction over all of the claims, and
[section 1441(c)] has no application to this case.”); Hayley v.
Regions

Bank,

No.

3:12-CV-437-WKW[WO],

2012

U.S.

Dist.

LEXIS

171501, at *5 (M.D. Ala. Dec. 4, 2012) (“Plaintiffs’ state law
claims fall squarely within this court’s supplemental jurisdiction,
making severance and remand [under Section 1441(c)] unavailable.”);
Shipley Garcia Enters., LLC v. Cureton, No. M-12-89, 2012 U.S.
Dist. LEXIS 110153, at *43 (S.D. Tex. Aug. 7, 2012) (“[1441(c)]
facially does not apply to an action over which the Court has
original and supplemental jurisdiction.”).
As

discussed

above,

this

action

satisfies

the

first

requirement of § 1441(c)(1) because it includes claims involving
federal questions.

Therefore, to determine if BANA qualifies for

the § 1441(c)(2) exception to the rule of unanimity, this Court
must determine if it has supplemental jurisdiction over all of the

7

plaintiff’s state law claims.

A district court has “supplemental

jurisdiction over all claims that are so related to claims in the
action within [the court’s] original jurisdiction that they form
part of the same case or controversy . . .”

28 U.S.C. § 1367(a).

Whether the federal-law claims and state-law claims are part of the
same case or controversy is determined by whether they “derive from
a

common

nucleus

of

operative

fact’

and

are

‘such

that

[a

plaintiff] would ordinarily be expected to try them all in one
judicial proceeding.’”

Carnegie-Mellon Univ. v. Cohill, 484 U.S.

343, 349 (1988) (quoting United Mine Workers v. Gibbs, 383 U.S.
715, 725 (1966)) (alteration in original).
brings

several

state

law

claims

that

Here, the plaintiff

arise

out

of

the

same

accusations of wrongful disclosure as the plaintiff’s federal law
claims.2

BANA admits that this Court would have supplemental

jurisdiction over any statutory, state common law, or other nonfederal claims brought by the plaintiff because those claims arise
out of the same operative facts as the plaintiff’s purported
federal violations.

ECF No. 1 ¶ 22.

Because this Court has

original jurisdiction over the plaintiff’s federal law claims and
supplemental jurisdiction over all of the plaintiff’s state law
claims, BANA cannot rely on the § 1441(c) exception to the rule of

2

For example, Count IV alleges a state consumer credit
protection law violation under West Virginia Code § 31-17-8. See
ECF No. 1-2, 9-17, Counts IV through XIII.
8

unanimity. Because Golden, BANA’s co-defendant, did not consent to
removal, removal is not proper.
IV.

Conclusion

For the reasons stated above, the plaintiff’s motion to remand
(ECF No. 8) is GRANTED.

This matter is hereby REMANDED to the

Circuit Court of Ohio County, West Virginia.

The plaintiff’s

petition for contempt (ECF No. 4) and motion for leave to file a
reply (ECF No. 10) are DISMISSED WITHOUT PREJUDICE to be re-filed
in state court if appropriate.
IT IS SO ORDERED
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the Clerk of
the Circuit Court of Ohio County, West Virginia.
DATED:

June 23, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

9