Bank of New York v. Consiglio

          ORDER ADOPTING RECOMMENDED RULING AND REMANDING TO STATE COURT

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE

         On August 18, 2017, Defendant Andrew Consiglio ("Defendant" or "Consiglio"), appearing pro se, filed a Notice of Removal [Doc. 1] removing from the Connecticut Superior Court, Judicial District of Stamford/Norwalk at Stamford ("the state court" or "the Superior Court") a foreclosure action brought against him by Plaintiff Bank of New York. On the same date Defendant filed a Motion for Leave to Proceed in Forma Pauperis [Doc. 2], which was referred by this Court to Magistrate Judge Sarah A. L. Merriam. Judge Merriam's Recommended Ruling [Doc. 9] counsels the Court to deny the instant Motion and, further, to remand this matter to state court for lack of subject matter jurisdiction. Recommended Ruling 1. The Defendant has filed an Objection [Doc. 10] to the Recommended Ruling. This Order considers and rejects the objections raised to Judge Merriam's opinion, reviews the remainder of that opinion for plain error, and accepts Judge Merriam's Ruling in toto. This Order further considers Plaintiffs request for reasonable attorney's fees and costs, made by its Motion for Remand to State Court [Doc. 6].

         I. STANDARD OF REVIEW

         The standard of review for a district court's evaluation of a magistrate judge's recommended ruling depends on whether a party has filed a timely written objection to the magistrate judge's "proposed findings and recommendations." 28 U.S.C. § 636(b)(1). Written objections are timely if the objecting party serves and files them "within fourteen days after being served with a copy" of the magistrate judge's proposed findings and recommendations. Id. The statute further provides: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. A district court reviews only for "clear error" those portions of a magistrate judge's recommended ruling as to which no specific objection was made. See Thomas v. Am, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"); Bandhan v. Lab. Corp. of Am., 234 F.Supp.2d 313, 316 (S.D.N.Y.2002) ("A district court evaluating a Magistrate's report may adopt those portions of the report to which no 'specific, written objection' is made, as long as those sections are not clearly erroneous" (quoting Fed.R.Civ.P. 72(b))).

         In sum, I will conduct a de novo review of the objected-to portions of the Recommended Ruling, and I will then review the remainder of the Recommended Ruling under a "clearly erroneous" standard.

         II. DISCUSSION

         A. Defendant's Objections to the Recommended Ruling

         Defendant filed his Objection [Doc. 10] on October 16, 2017, fourteen days after Judge Merriam issued her Recommended Ruling [Doc. 9]. While this filing met the statutory deadline for objection, it was not made in strict compliance with the requirements of Local Rule of Civil Procedure 5, which governs the service and filing of pleadings and other papers.

         Local Rule of Civil Procedure 5(c) provides that "[p]roof of service may be made by written acknowledgment of service by the party served, by a certificate of counsel for the party filing the pleading or papers, by a certificate of the self-represented party filing the pleading or papers, or by affidavit of the person making the service." Defendant's Objection is accompanied by a "Certificate of Service" purporting to certify that a copy of the filing was sent to Plaintiffs counsel by first class mail. The purported Certificate is signed by one Heather Lindsay ("Lindsay"), who the signature block identifies as "Conservator of Andrew Consiglio" and "Media Relations Specialist for Foreclosure Revolution Cooperative Society."^[1] As Local Rule 5(c) makes clear, the only individuals who may file a certificate of service are party counsel and pro se parties. Lindsay is not a party to this matter, and, indeed, has not entered any appearance. In a strict reading of the Rules, her "Certificate of Service" is therefore invalid, and the filing to which it is attached was not properly filed within the statutory time frame. However, in the interests of finality, I will proceed with the analysis of Defendant's objections as though they had been properly filed.

         Defendant's filing raises three separate objections to Judge Merriam's findings. He objects to Judge Merriam's findings that (1) the Court lacks federal question jurisdiction; (2) the Court lacks diversity jurisdiction over this matter; and(3) the removal was untimely. I will address Defendant's objections in turn.

         1. Federal Question Jurisdiction

         So-called "federal question" or "arising under" subject matter jurisdiction is codified at 28 U.S.C. § 1331, which grants the federal courts "jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Under the long-established "well-pleaded complaint rule, " federal subject matter jurisdiction under § 1331 is limited to those cases in which the complaint relies upon some federal basis of law, and does not extend to cases where the defendant may raise some federal defense. See Louisville v. Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908) ("It is the settled interpretation of these words . . . that a suit arises under the Constitution and laws of the United States only when the plaintiffs statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States.").

         Here, Defendant's Notice of Removal [Doc. 1] asserts federal jurisdiction over the state court Complaint, on the basis that "[t]his action is a Civil action of which the Federal Court has original jurisdiction under § 1331 ... in that its causes of action arise[] under a federal question pertaining to the Fair Debt Collection Practices Act codified in 15 U.S.C. § 1692, et. seq., as well as HOEPA, RESPA, TILA and the Uniform Commercial Code (UCC)." Notice of Removal ¶ 2.

         This characterization of the state court Complaint is not accurate, as Plaintiff asserts no federal cause of action, and its Complaint sounds squarely and solely in foreclosure, a quintessential state cause of action. See, e.g., Muongv. Fed. Nat'l Mortgage Ass'n, No. 13CV6564(KAM), 2013 WL 6667374, at *2 (E.D.N.Y.Dec. 16, 2013) (collecting cases); Bank of Am. Nat. Ass'n v. Derisme,743 F.Supp.2d 93, 102 (D. Conn. 2010). The Complaint is ...