Opinion
Civil Action 3:21-CV-02005
02-24-2022
ANTONELLO BOLDRINI, et al., Plaintiffs, v. LUZERNE COUNTY, et al., Defendants.
MANNION, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
Before the Court are two motions to remand filed by Defendants 1900 Capital Trust II, by U.S. Bank Trust National Association (“Capital Trust”) and Luzerne County (collectively, “Defendants”). (Doc. 4; Doc. 14). Additionally, Plaintiffs Antonello Boldrini and Daniele A. Boldrini (collectively, “Plaintiffs”) bring a motion for removal, two motions for extension of time, and a motion for reconsideration. (Doc. 17; Doc. 19; Doc. 57; Doc. 58). Defendant Capital Trust filed its motion to remand on November 30, 2021; and Defendant Luzerne County filed its motion to remand on December 9, 2021. (Doc. 4; Doc. 14). Defendants request that the current matter be remanded to the Court of Common Pleas of Luzerne County due to Plaintiffs' failure to sufficiently allege federal question jurisdiction or diversity jurisdiction under 28 U.S.C. §§ 1331, 1332. (Doc. 5, at 3-4; Doc. 16, at 3). Additionally, Defendant Capital Trust avers that removal by Plaintiffs is improper as it violates a previous Order from the Court enjoining Antonello Boldrini from filing an action without leave of Court. (Doc. 5, at 4). For the following reasons, it is recommended that Defendants' motions to remand (Doc. 4; Doc. 14) be granted, Plaintiffs' motion for removal (Doc. 19) be denied, and Plaintiffs' motions for extension of time and motion for reconsideration be struck as moot (Doc. 17; Doc. 57; Doc. 58).
As the Court recommends that Plaintiffs' case be remanded to the Court of Common Pleas of Luzerne County, the Court declines to address this issue. However, the Court recognizes Judge Mariani's Order enjoining Antonello Boldrini “from filing, without leave of Court, any new case in this Court arising in connection with or relating to the facts and claims” of his state mortgage foreclosure proceedings. (Doc. 4, at 12-13); 1900 Capital Trust II by U.S. Bank Trust Nat'l Ass'n v. Boldrini, No. 3:19-cv-01576 (M.D. Pa. Dec. 9, 2019), ECF No. 122. The Court notes that Antonello Boldrini has not demonstrated that he sought leave of Court to remove this case and that his actions are in violation of Judge Mariani's Order.
I. Background and Procedural History
On November 26, 2021, Plaintiffs removed “[t]wo Luzerne County cases” pursuant to 28 U.S.C. §§ 1441, 1443. (Doc. 1, at 2). Plaintiffs claim that the county actions are properly removed because Defendants violated Plaintiffs' Fifth Amendment due process rights, and Fourth Amendment rights. (Doc. 1, at 2). Plaintiffs also assert a conspiracy claim and racketeering claim against Defendants. (Doc. 1, at 2-3).
Plaintiffs erroneously filed their removal as plaintiffs. (Doc. 1, at 1). The original county court actions were brought against Daniele and Antonello Boldrini by Luzerne County and Capital Trust. (Doc. 1, at 6; Doc. 7-1, at 2). For the sake of consistency and clarity, the Court will continue to refer to Daniele and Antonello Boldrini as “Plaintiffs” and Luzerne County and Capital Trust as “Defendants.”
On November 30, 2021, Defendant Capital Trust filed a motion to remand to state court stating that the Court lacked jurisdiction due to Plaintiffs' failure to allege a federal question or that the parties are diverse. (Doc. 5, at 3-4). Additionally, Defendant Capital Trust alleges that Plaintiffs are in violation of a previous Court Order enjoining Antonello Boldrini from filing any action regarding the set of facts alleged without leave of Court. (Doc. 5, at 4). On December 9, 2021, Defendant Luzerne County filed a motion to remand also alleging that Plaintiffs have failed to present a federal question or diversity jurisdiction. (Doc. 16, at 3). Defendants request that the matter be remanded to the Court of Common Pleas of Luzerne County. (Doc. 5, at 3; Doc. 16, at 3).
On December 10, 2021, Plaintiffs filed a motion for extension of time to file a brief in support of their notice of removal. (Doc. 17). On December 20, 2021, Plaintiffs filed a motion for removal to federal court and to dismiss the underlying state court actions. (Doc. 19). In their motion, Plaintiffs seek leave of court to file the current action and detail the facts and procedural history of Antonello Boldrini's previous case held before Judge Mariani. (Doc. 24, at 2, 3-11). On January 5, 2022, Defendants filed a joint motion to stay proceedings pending the Court's decision on the previously filed motions to remand. (Doc. 26, at 3-4). On January 10, 2022, the Court granted Defendants' motion to stay the proceedings pending adjudication of Defendants' respective motions to remand. (Doc. 36, at 1). On January 24, 2022, Plaintiffs filed a motion for reconsideration regarding Defendants' motion to stay and filed a motion for extension of time for discovery and to file an amended complaint the following day. (Doc. 57; Doc. 58).
On January 3, 2022, Plaintiffs filed a brief in support of the motion for removal and to dismiss. (Doc. 24). As such, Plaintiff's motion for extension of time is now moot and it is recommended that Plaintiffs' motion for extension of time be STRUCK as MOOT. (Doc. 17).
II. Discussion
A. Removal Standard
The removal of cases from state courts to federal courts is governed by 28 U.S.C. §§ 1441-1455. Under § 1441(a), a defendant may remove “any civil action brought in a state court of which the district courts of the United States have original jurisdiction . . . to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). In the case at bar, Plaintiffs do not state how they are seeking a notice of removal, as they simply state that they are seeking removal pursuant to 28 U.S.C. §§ 1441 and 1443. (Doc. 1). As Plaintiffs are proceeding pro se, the Court will assess whether they have alleged jurisdiction based on diversity of citizenship or a federal question.
Section 1446 of the removal statute further sets forth the procedures for removal, explaining that a defendant seeking removal of an action must file a petition for removal with the district court that contains “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants” in the state court action. 28 U.S.C. § 1446(a). In addition, a notice of removal “shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. §§ 1446(b). After a case has been removed, a plaintiff may move to remand the action back to state court under 28 U.S.C. § 1447(c) for “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure.” Ramos v. Quien, 631 F.Supp.2d 601, 607 (E.D. Pa. 2008) (quoting PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir.1993)). However, a “motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal.” 28 U.S.C. § 1447(c).
Because federal courts are courts of limited jurisdiction, both the Supreme Court of the United States and the Third Circuit Court of Appeals have recognized that removal statutes are to be strictly construed against removal with all doubts resolved in favor of remand. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004) (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). A district court “shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, ” between “citizens of different states.” 28 U.S.C. § 1332(a)(1). “If the citizenship of the parties is not disclosed in the complaint, the case is not removable unless the defendant can affirmatively plead and later prove the existence of diversity. ” Balilaj v. Marshalls, Inc., No. CIV.A. 03-5908, 2004 WL 437448, at *2-4 (E.D. Pa. Mar. 2, 2004) (citing 16 James Wm. Moore et al., Moore's Federal Practice ¶ 107.14 (3d ed. 2002)); see also Rosenfield v. Forest City Enterprises, L.P., 300 F.Supp.3d 674, 674-75 (E.D. Pa. 2018) (“[W]here, as here, it is not apparent from the face of the complaint that a case is removable, a defendant may remove within thirty days of receipt of an amended complaint, motion, order, or ‘other paper' from which it may first be ascertained that the case is removable.”) (citing 28 U.S.C. § 1446(b)3)). Moreover, “a defendant utilizing diversity for removal must show that diversity existed not only upon removal but also at the time of commencement of the action in state court.” Fiorentino v. Huntingside Associates, 679 F.Supp. 3, 5 (E.D. Pa. 1987) (citing Kerstetter v. Ohio Cas. Ins. Co., 496 F.Supp. 1305, 1307 (E.D. Pa. 1980)); Ellerbee v. Union Zinc, Inc., 881 F.Supp. 162, 164 (E.D. Pa. 1995). Additionally, a district court “shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The Third Circuit has repeatedly held that “the party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court.” Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); see also Samuel-Bassett, 357 F.3d at 396.
B. Motions to Remand
In moving to remand, Defendants submit that Plaintiffs have failed to allege either federal question jurisdiction or diversity jurisdiction. (Doc. 5, at 3-4; Doc. 16, at 3). In their briefs in opposition, Plaintiffs fail to discuss any form of jurisdiction that would permit the Court to hear their claims. (Doc. 9; Doc. 18). The Court finds that Plaintiffs have failed to allege either diversity jurisdiction or federal question jurisdiction and it is recommended that this matter be remanded to the Court of Common Pleas of Luzerne County.
First, Plaintiffs have not alleged diversity jurisdiction in this matter. As discussed supra, “[i]f the grounds [for removal] are premised on diversity, the notice [of removal] must allege diversity at the time of the commencement of the action and at the time of the notice filing.” Moser v. Bostitch Div. of Textron, Inc., 609 F.Supp. 917, 918-19 (W.D. Pa. 1985). Here, Plaintiffs' notice of removal does not allege where the Defendants are domiciled and states that Plaintiffs are “[r]esidents” of “81 Frothingham Street Pittston PA.” (Doc. 1, at 1).
Based on these allegations, the Court finds that the notice of removal does not properly allege diversity of citizenship between the parties, as the Notice of Removal contains no averments of the locations of “citizenship” of the individual parties, nor does it attempt to allege where the Defendants are domiciled. (Doc. 1). As the notice of removal fails to allege where the Defendants are located, the Court is unable to determine if diversity citizenship exists.
Additionally, the notice of removal fails to allege where Plaintiffs are domiciled as it merely alleges that they are residents of Pittston, Pennsylvania. (Doc. 1, at 1). The terms “resident” and “citizen” are not interchangeable for diversity purposes and have distinct definitions under the law. See McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006) (“Citizenship is synonymous with domicile and the domicile of an individual is his true, fixed and permanent home and place of habitation.”) (internal citations omitted); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972) (“Where one lives is prima facie evidence of domicile, but mere residency in a state is insufficient for purposes of diversity.”) (citations omitted). As such, the allegations that Plaintiffs are residents of Pennsylvania “d[o] not meet the jurisdictional requirement of 28 U.S.C. § 1332(a).” See Camacho v. Cove Trader, Inc., 612 F.Supp. 1190, 1191 (E.D. Pa. 1985) (emphasis in original); Fiorentino, 679 F.Supp. at 4 (finding that diversity of citizenship is not shown by mere averments of a party's residence); Miss. Bandof Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (“‘[D]omicile' is not necessarily synonymous with ‘residence, '” as one's “domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there”); Krasnov, 465 F.2d at 1300 (to establish one's domicile, “the fact of residency must be coupled with a finding of intent to remain indefinitely”).
As the notice of removal completely fails to allege Defendants' domicile and insufficiently alleges Plaintiffs' domicile, Plaintiffs have not adequately alleged any of the parties' citizenships or their diversity.
Next, the Court turns to whether Plaintiffs have sufficiently alleged that a federal question exists. The presence or absence of federal question jurisdiction is governed by the “well-pleaded complaint rule, ” which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. See Gully v. First Nat'l Bank, 299 U.S. 109, 112-113 (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law. Kline v.Sec. Guards, Inc., 386 F.3d 246, 251-52 (3d Cir. 2004); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal question jurisdiction cannot be predicated on an actual or anticipated defense or counterclaim. Gosch v. Int'l Chapter of Horseshoers and Equine Trades, Local 947, 200 F.Supp.3d 484 490-491 (M.D. Pa. 2016); Caterpillar, 482 U.S. at 392. Relevant to this matter, a defendant cannot create federal jurisdiction by asserting federal defenses or counterclaims to a state law foreclosure complaint. U.S. Bank Nat'l Ass'n v. Tillman, No. CV N17L-07-057 JRJ, 2017 WL 6542746, at *2 (D. Del. Dec. 20, 2017), appeal dismissed sub nom. U.S. Bank NA v. Tillman, No. 18-1189, 2018 WL 3655852 (3d Cir. Feb. 26, 2018); Green Tree Servicing LLC v. Dillard, 88 F.Supp.3d 399, 402 (D.N.J. 2015) (ordering remand because mortgage foreclosure is state law case, and defendant's assertion of issues under the FDCPA does not create federal jurisdiction).
Here, the actions Plaintiffs are seeking to remove assert a variety of property claims that are grounded in state law. (Doc. 7-4, at 2-5; Doc. 7-5, at 2-11). Plaintiffs attempt to remove claims that involve a petition to void a deed, ejectment, and residential mortgage foreclosure all sounding in real property law. (Doc. 7-4, at 2; Doc. 7-5, at 2). Questions of property law are construed as state-law claims. Harris v. Wetzel, 822 Fed.Appx. 128, 131 (3d Cir. 2020). Additionally, Plaintiffs' Fourth and Fifth Amendment claims are in response to the real property claims in the original county court actions and are considered defenses or counterclaims. (Doc. 1, at 2-3). Plaintiffs' Fourth and Fifth Amendment claims are insufficient to assert federal question jurisdiction as they are predicated on a defense. See Gosch, 200 F.Supp.3d at 490-491; Caterpillar, 482 U.S. at 392; Tillman, 2017 WL 6542746, at *2. Thus, Plaintiffs have failed to allege a federal question as the facts of the complaint assert only state-law property claims. (Doc. 1, at 2-3).
Consistent with its duty to liberally construe pro se pleadings, the Court also considers Plaintiffs' “Statements & Material Facts Evidences in Support of Removal.” (Doc. 8). However, even under this liberally standard, the Court cannot discern any claims that are based in federal law as the sole cause of action arises from state property interests. (Doc. 8).
For these reasons, the Court finds that the Notice of Removal contains insufficient jurisdictional allegations regarding the parties' citizenship or a federal question. 28 U.S.C. §§ 1331, 1332(a)(1) It is recommended that Defendants' motions to remand be granted and that the case be remanded to the Court of Common Pleas of Luzerne County. (Doc. 4; Doc. 14). Because the Court lacks jurisdiction over these proceedings, it is recommended that Plaintiffs' motion for removal to federal court and to dismiss the underlying state court actions be denied. (Doc. 19).
III. Recommendation
Based on the foregoing, it is recommended that Defendants' motions to remand (Doc. 4; Doc. 14) be GRANTED, Plaintiffs' motion for removal (Doc. 19) be DENIED, Plaintiffs' motions for extension of time (Doc. 17; Doc. 58) and motion for reconsideration (Doc. 57) be STRUCK as MOOT, the case be remanded to the Court of Common Pleas of Luzerne County, and the Clerk of Court be directed to close this case.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 24, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.