Opinion
Civil No. PJM 17-1379
12-28-2017
DIANE S. ROSENBERG, et al., Plaintiffs, v. DARYL GREEN, Defendant.
MEMORANDUM OPINION
Pro Se Defendant Daryl Green has attempted to remove this foreclosure action from the Circuit Court for Prince George's County. Plaintiffs ask the Court to remand to state court and grant attorney's fees. For the following reasons, the Court will GRANT Plaintiffs' Motion to Remand, except as to attorney's fees (ECF No. 52).
I. FACTS AND PROCEDURAL HISTORY
This action arises from a foreclosure proceeding initiated by Plaintiffs against Green in the Circuit Court for Prince George's County in June 2015. Nearly two years later, on May 15, 2017, Green filed a Notice of Removal, attempting to remove the case to this Court. In his Notice of Removal, Green raises several counterclaims alleging violations of various federal consumer protection statutes. Shortly after removing the case, Green filed a Motion for Protection and Other Relief (ECF No. 50), in which he states the state court held "secret" hearings after removal and "backdated" the hearing dates on the docket. ECF No. 50. He asks the Court to vacate the state court orders and provide other injunctive relief. Id. at 3.
Green has also filed a separate civil suit, which is pending before this Court, in which he makes similar allegations. See Green v. Rosenberg & Associates et al., Civil No. PJM 17-732.
Plaintiffs filed a Motion to Remand the case based on improper removal on June 2, 2017, and request attorney's fees. Green has filed an Opposition (ECF No. 53).
II. LEGAL STANDARD
The removing party bears the burden of proving that a federal court has jurisdiction. Lexington Mkt. v. Desman Assocs., 598 F. Supp. 2d 707, 709 (D. Md. 2009) (citing Lloyd v. General Motors Corp., 560 F. Supp. 2d 420, 422 (D. Md. 2008)). Because of the significant federalism concerns raised by lifting cases from state court, removal jurisdiction is to be narrowly interpreted and district courts must resolve all doubts in favor of remand. Id.
Additionally, a proceeding must typically be removed within 30 days of the receipt of the initial pleading by the defendant. 28 U.S.C. § 1446 (b). When a defendant fails to timely remove a case, the right to remove is forfeited. See McKinney v. Bd. of Trustees of Mayland Cmty. Coll., 955 F.2d 924, 925 (4th Cir. 1992).
III. ANALYSIS
To begin, Green's removal of the foreclosure proceeding is untimely. See 28 U.S.C. § 1446(b). His notice of removal was filed almost two years after the initiation of the state foreclosure action and more than a year after Green filed his Motion to Dismiss in state court. This is well after the 30 day deadline for removal, id., and Green does not assert good cause for untimely removal.
In any event, even if removal were timely, Green has not met his burden of proving the Court has jurisdiction. A counterclaim filed within the foreclosure proceeding does not create federal question jurisdiction. See Cohn v. Charles, 857 F. Supp. 2d 544, 548 (D. Md. 2012). Rather, "the federal question must be presented by plaintiff's complaint as it stands at the time the petition for removal is filed." Herman v. Lincoln Nat'l Life Ins. Co., 842 F. Supp. 2d 851, 853 (D. Md. 2012). Thus, Green's federal counterclaims are insufficient to establish federal question jurisdiction. Additionally, Green has failed to prove diversity jurisdiction. Plaintiffs contend that four of them are citizens of Maryland. ECF No. 52-1 at 3. Because Green is also a citizen of Maryland, this destroys complete diversity. Green has not contested Plaintiffs' assertion and has therefore failed to meet his burden of establishing federal jurisdiction.
Despite improper removal of the case, the Court does not believe attorney's fees are warranted given Green's pro se status. Thus, Plaintiffs' Motion in that regard is DENIED. --------
Because the Court lacks jurisdiction to hear this case, it must remand to state court. Green's Motion for Other Relief (ECF No. 50) is therefore dismissed as MOOT.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion to Remand (ECF No. 52) is GRANTED, and the case is REMANDED to the Circuit Court for Prince George's County. Plaintiffs' request for attorney's fees is DENIED. Green's Motion for Protection and Other Relief (ECF No. 50) is dismissed as MOOT.
A separate Order will ISSUE.
/s/ _________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE December 28, 2017