United States District Court, D. Connecticut
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 ...