United States District Court, D. Connecticut
ORDER OF REMAND
KARI
A. DOOLEY, UNITED STATES DISTRICT JUDGE
A
review of this file reveals that this Court lacks subject
matter jurisdiction over this matter and accordingly, it is,
sua sponte, remanded to the Superior Court, judicial
district of Stamford. The self-represented defendant, Andrew
Consiglio, (the "Defendant") removed this action,
for the second time, [1] from the Connecticut Superior Court on
July 29, 2019. See Bank of New York v. Consiglio, Andrew,
et al, No. FST-CV08-5006978-S.
Federal
courts have subject matter jurisdiction over only matters in
which a federal question is raised or there is diversity of
citizenship. See 28 U.S.C. §§ 1331, 1332.
Federal question jurisdiction exists where the action
"aris[es] under the Constitution, laws or treaties of
the United States." 28 U.S.C. § 1331. "[A]
suit 'arises under' federal law . . . 'only when
the plaintiff's statement of his own cause of action
shows that it is based upon [federal law].'"
Vaden v. Discover Bank, 556 U.S. 49, 60 (2009)
(quoting Louisville & Nashville R. Co. v.
Mottley, 211 U.S. 149, 152 (1908)). Diversity
jurisdiction exists only where there is complete diversity of
citizenship between the parties and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a).
Federal
Question Jurisdiction
Here,
there is no basis for federal question jurisdiction. The
Defendant's Notice of Removal in this case (ECF No. 1)
asserts federal jurisdiction 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 ¶ 1. As he was the first time he removed this
case, the Defendant is mistaken. As previously observed,
“[u]nder 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.” Consiglio, 2017 WL 4948069, at
*2. And here again, the underlying complaint sounds
only in foreclosure. "It is well settled that judgments
of foreclosure . . . are fundamentally matters of state
law." Muong v. Fed. Nat. Mortgage Ass'n,
No. 13-cv-06564 (KAM), 2013 WL 6667374, at *2 (E.D.N.Y. Dec.
16, 2013) (collecting cases). The Defendant's citation to
federal claims appears to derive from the
“complaint” he seeks to bring against the
Plaintiff. Although he refers to himself as the plaintiff, or
sometimes the “purported defendant, ” it is clear
that the Defendant's “complaint” is a
counterclaim. And as this Court (Haight, J.) has already
held, “counterclaims, even if they rely exclusively on
federal substantive law, do not qualify a case for
federal-court cognizance.” Consiglio, 2017 WL
4948069, at *3 (quoting Vaden, 556 U.S. at 62).
The
Defendant also asserts that removal is proper in light of the
Supreme Court's decision in Knick v. Twp. of Scott,
Pennsylvania, 139 S.Ct. 2162 (2019). In Knick,
the Supreme Court addressed the question of whether a
property owner had to exhaust state court remedies before
bringing a Fifth Amendment takings claim in federal court
under § 1983. Knick has no application to this
case. This case does not involve a government
“taking” at all or claims under Section 1983.
This is a foreclosure action brought by a private entity.
Diversity
Jurisdiction
Although
not asserted, diversity jurisdiction is also lacking. A case
may not be removed to federal court if the "defendant[ ]
is a citizen of the State in which such action is
brought." 28 U.S.C. § 1441(b); accord Wells
Fargo Bank, National Association v. White, 2018 WL
650372 at *2 ("A state court case is not removable,
however, based solely on diversity jurisdiction if any
defendant is a citizen of the state in which the action is
brought") (citing 28 U.S.C. § 1441(b)(2)); U.S.
Bank Tr., N.A. for Wells Fargo Asset Sec. Corp. v.
Walbert, No. 3:17-CV-00991 (CSH), 2017 WL 3578553, at *3
(D. Conn. Aug. 18, 2017) ("Because Defendant appears to
be a citizen of Connecticut, and has not alleged that he is a
citizen of any other state, and Connecticut is the state in
which the civil action is brought, the foreclosure action is
not removable"). Here, the case was commenced against
the Defendant in Connecticut Superior Court, and the
Defendant is a citizen of the state of Connecticut. Thus,
this foreclosure action is not removable on diversity
grounds.
Conclusion
For the
foregoing reasons, the Court lacks subject matter
jurisdiction over this case, and it is sua sponte
remanded back to the Connecticut Superior Court, judicial
district of Stamford. Royal Ins. Co. v. Jones, 76
F.Supp.2d 202, 204 (D. Conn. 1999) ("a court lacking
subject matter jurisdiction over a removed action must remand
that action to state court sua sponte or on motion");
see United Food & Commercial Workers Union, Local
919, AFL-CIO v. CenterMark Props. Meriden Square,
Inc., 30 F.3d 298, 301 (2d Cir. 1994) (recognizing that
lack of subject matter jurisdiction may be raised sua
sponte by the court and that "[w]here jurisdiction
is lacking . . . dismissal is mandatory"). The Clerk of
the Court is directed to: (1) remand this matter to the
Connecticut Superior Court, judicial district of Stamford,
pursuant to 28 U.S.C. § 1447(c), and (2) close this
case.
SO
ORDERED
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Notes:
[1] On August 18, 2017, the Defendant
removed this matter to the district court. Upon motion of the
Plaintiff, Bank of New York, the case was remanded back to
state court upon a finding that the district court did not
have subject matter jurisdiction to hear the matter. Bank
of New York v. Consiglio, No. ...