Opinion
CIVIL ACTION NO. 3:04cv547 (SRU)
April 7, 2004
ORDER OF REMAND
HSBC Bank, USA ("HSBC") sued Henry and Deborah Norley (the "Norleys") in ConnecticutSuperior Court to foreclose on a judgment lien on the Norley's real property. The state courtcomplaint also names HSBC as a defendant due to the fact that HSBC has a second lien on theproperty. The complaint sets forth two counts, both seeking foreclosure under Connecticut law. Nofederal cause of action is pleaded.
The Norleys were served with the Summons and Complaint on February 11, 2004. On March 23, 2004, the Norleys removed the case to federal court by filing a notice of removal, which wasdocketed in this court on April 2, 2004. On April 5, 2004, HSBC filed a motion to remand (doc. # 4), asserting that the notice of removal was untimely, that this court lacks subject matter jurisdiction, andthat the Norleys failed to comply with the procedural requirements for removal set forth in 28 U.S.C. § 1446. For the reasons set forth below, the motion to remand is granted.
Remand is required for several reasons. First, this action is not eligible for removal, unlessfederal question jurisdiction is apparent on the face of the complaint, because at least one of thedefendants is a citizen of the State of Connecticut. Under 28 U.S.C. § 1441(b), an action not arising under federal question jurisdiction "shall be removable only if none of the parties in interest properlyjoined and served as defendants is a citizen of the State in which such action is brought." BecauseDeborah Norley is a citizen of Connecticut for diversity purposes, the action is not removable unless thecomplaint raises a federal question. As discussed below, the complaint in this case does not raise afederal question; this case is therefore ineligible for removal.
Second, the notice of removal was untimely. Under 28 U.S.C. § 1446(b), the Norleys hadonly thirty days from receipt of the complaint to file their notice of removal. Service of the complaintwas made on February 11, 2004, yet the notice of removal was not filed until March 23, 2004, wellover thirty days later. HSBC timely objected to the untimeliness of the notice of removal. See 28 U.S.C. § 1447(c).
Third, the court lacks subject matter jurisdiction over this case. Under the "well pleadedcomplaint" rule, no federal claim has been pleaded in the complaint. Franchise Tax Board of Californiz v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Although the Norleys seem tosuggest that they will be making federal law claims against HSBC and possibly also its counsel, DavidW. Rubin, a federal issue that may yet be raised in an answer, affirmative defense or counterclaim is notsufficient to support removal of state law claims.See Phillips Petroleum Co. v. Texaco, Inc., 415 U.S.125, 127-28 (1974). Thus, the court lacks federal question jurisdiction.
Nor is there the complete diversity of citizenship required to support diversity jurisdiction. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 388 (1998). Because HSBC is properlyboth a plaintiff and a defendant in this foreclosure action, complete diversity is necessarily destroyed.
An order remanding a case to state court "may require payment of just costs and any actualexpenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). Here HSBC has sought costs and fees in the amount of $1,080. Although the removal was improper forseveral reasons, I decline to award costs or fees because the removing defendants are acting pro se, and may not have understood the limitations on removal.
For the foregoing reasons, the motion to remand (doc. # 4) is granted. The clerk is instructedto mail a certified copy of this order to the clerk of the Superior Court for the Judicial District ofDanbury and to close this file.
So ordered.