Bank of New York Mellon v. Glavin, Gabrielle et al

Filing 11

ORDER that plaintiff Bank of New York Mellon's motion to remand, dkt.# 4 , is GRANTED, but plaintiff's request for fees and costs is DENIED. The clerk of court is directed to remand the case to the Circuit Court for Juneau County. Signed by District Judge Barbara B. Crabb on 3/11/15. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THE BANK OF NEW YORK MELLON,
formerly known as the Bank of New York
on behalf of CIT Mortgage Loan Trust 2007-1,
ORDER
Plaintiff,
14-cv-883-bbc
v.
GABRIELLE GLAVIN, JOHN A. GLAVIN,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
UNIFUND CCR PARTNERS, CITIBANK (SOUTH DAKOTA) N.A.
and UNITED STATES OF AMERICA,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendants Gabrielle Glavin and John Glavin have filed a notice of removal of a state
foreclosure action filed in the Circuit Court for Juneau County, Wisconsin. This is the
second time that John Glavin has attempted to remove this case. The first time, I concluded
that subject matter jurisdiction was present because of plaintiff Bank of New York Mellon’s
claim against the United States, case no. 10-cv-765-slc, dkt. #14, but I remanded the case
because Glavin’s notice of removal was untimely. Id. at dkt. #18.
Plaintiff has filed a motion to remand the case to state court, again on the ground that
defendants’ notice of removal is untimely. Dkt. #18. Under 28 U.S.C. § 1446(b), the
notice of removal must be filed within 30 days of the pleading that provides the basis for
removal. Although defendants say in their opposition brief that they have received “a

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number of [new] documents” providing a basis for removal within 30 days before they
removed the case a second time, they do not identify what those documents are, much less
explain how those documents provided a new basis for removal. Because defendants have
the burden to prove that removal was proper, Jones v. General Tire & Rubber Co., 541 F.2d
660, 664 (7th Cir. 1976), their failure to make the necessary showing means that the case
must be remanded. Plaintiff also asks for fees and costs, but I am denying that request
because plaintiff does not develop an argument in support of it.

ORDER
IT IS ORDERED that plaintiff Bank of New York Mellon’s motion to remand, dkt.
#4, is GRANTED, but plaintiff’s request for fees and costs is DENIED. The clerk of court
is directed to remand the case to the Circuit Court for Juneau County.
Entered this 11th day of March, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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