Opinion
Case No. 3:15-cv-379
11-18-2015
HUNTINGTON NATIONAL BANK, Plaintiff, v. VIVIAN LOUISE THOMPSON, Defendant.
District Judge Walter H. Rice
REPORT AND RECCOMENDATION THAT: (1) THIS CASE BE REMANDED TO THE MONTGOMERY COUNTY, OHIO COURT OF COMMON PLEAS PURSUANT TO 28 U.S.C. §§ 1915(e)(2) , 1447(c); (2) HUNTINGTON NATIONAL BANK'S MOTION TO REMAND (DOC. 4) BE DENIED AS MOOT; AND (3) THIS CASE BE TERMINATED ON THE COURT'S DOCKET
Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
On October 15, 2015, pro se Defendant Vivian Louise Thompson ("Thompson") filed a notice of removal in this Court from a civil case in the Montgomery County, Ohio Court of Common Pleas. See doc. 1-2 at PageID 5-8; doc. 1-3 at PageID 10-14. On that date, Thompson also filed a motion for leave to proceed in forma pauperis, doc. 1, which the undersigned granted by notation order. The case is now before the Court for an initial review of Thompson's notice of removal to determine whether jurisdiction is proper. 28 U.S.C. § 1915(e)(2); see Bank of Am., N.A. v. Davidson, No. 1:12-cv-26, 2012 WL 404870, at *1 (S.D. Ohio Jan. 20, 2012). To that end, Plaintiff Huntington National Bank ("Huntington") has filed a motion for remand. Doc. 4.
I.
In November 2003, Thompson borrowed funds from Huntington and signed an adjustable rate note for $134,000 in order to finance the purchase of real property located at 140 Lexington Avenue in Dayton, Ohio. Doc. 2-1 at PageID 55; Huntington Natl. Bank v. Thompson, 24 N.E. 3d 621, 624 (Ohio Ct. App. 2014). Thompson allegedly defaulted on her obligations and, in February 2013, Huntington filed a complaint for foreclosure against her and others in the Montgomery County, Ohio Court of Common Pleas. Doc. 2 at PageID 49-50. The Common Pleas Court ultimately granted judgment in favor of Huntington and ordered the property sold. Huntington Natl. Bank, 24 N.E. 3d at 624. The Second District Court of Appeals affirmed the Common Pleas decision in November 2014, and the Supreme Court of Ohio declined jurisdiction in June 2015. Id., cert. denied, 142 Ohio St. 3d 1478 (2015). On October 15, 2015, Thompson sought to remove the state court proceeding to this Court. See doc. 1-2 at PageID 5-8.
II.
Under 28 U.S.C. § 1441(a), "[a]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the . . . defendants to the district court of the United States for the district and division embracing the place where such action is pending." Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453 (6th Cir. 1996) (quoting 28 U.S.C. § 1441(a)). Removal of a state court action under § 1441 is proper only if the action "could have been filed in federal court." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The party seeking removal bears the burden of establishing federal subject matter jurisdiction. Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 916 (6th Cir. 2007). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded" to the state court. 28 U.S.C. § 1447(c).
III.
Removal of this case was improper for several reasons. As an initial matter, as discussed above, the Common Pleas Court entered judgment, the Court of Appeals affirmed, and the Ohio Supreme Court declined jurisdiction, i.e., the state court proceedings are concluded, and judgment is final. Accordingly, this case was not "pending" before the state court at the time of the removal as required by 28 U.S.C. § 1441(a). See Ohio v. Doe, 433 F.3d 502, 507 (6th Cir. 2006) (holding that "when all that remains of an action is the enforcement of a judgment, removal to federal court is not authorized"); see also Oviedo v. Hallbauer, 655 F.3d 419, 423 (5th Cir. 2011); Yassan v. J.P. Morgan Chase and Co., 708 F.3d 963, 969 (7th Cir. 2013).
What Thompson is actually seeking to do here is an improper collateral attack of a final state court judgment.
Nevertheless, even if this case was "pending" in state court at the time of removal, the Court does not have original jurisdiction here. 28 U.S.C. § 1441(a). Huntington's state court complaint raises no issues arising under the Constitution or laws of the United States. See doc. 2 at PageID 49-54; Caterpillar, 482 U.S. at 392 (federal question jurisdiction under 28 U.S.C. § 1331 is proper "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint"). Although Huntington's complaint included a notice under the Fair Debt Collection Practices Act ("FDCPA"), such notice merely "notified [Thompson] of [her] right to information under federal law[,]" and provides no basis for removal. See Chase Manhattan Mortg. Corp., 507 F.3d at 915. Further, any defenses or counterclaims Thompson may possess, which she identifies in her notice of removal, doc. 1-2 at PageID 6-7, likewise do not support federal question jurisdiction as a basis for removal. Id. at 914-15 (internal citations omitted). Additionally, removal cannot occur on the basis of diversity jurisdiction because Thompson is an Ohio citizen. 28 U.S.C. § 1441(b)(2); see doc. 1-1 at PageID 4; see also doc. 1-2 at PageID 8; Chase Manhattan Mortg. Corp., 507 F.3d at 914 (defendants "were citizens of Ohio and thus barred from invoking removal jurisdiction on the basis of diversity").
Finally, even assuming, arguendo, that the case was "pending" in state court at the time of removal and the Court had original jurisdiction over it, Thompson's notice of removal was untimely under 28 U.S.C. § 1446, which states that a notice of removal "shall be filed within 30 days after receipt by the defendant . . . 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). Here, Thompson was served with Huntington's complaint via certified mail on February 14, 2013, i.e., over two and a half years before she filed the notice of removal.
IV.
For the foregoing reasons, the Court finds Thompson's notice of removal untimely and that the Court lacks subject matter jurisdiction. Accordingly, it is RECOMMENDED that:
1. This case be REMANDED to the Montgomery County, Ohio Court of Common Pleas pursuant to 28 U.S.C. §§ 1915(e)(2), 1447(c);Date: November 18, 2015
2. Huntington's motion to remand (doc. 4) be DENIED AS MOOT; and
3. This case be TERMINATED on the Court's docket.
s/ Michael J . Newman
Michael J. Newman
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within FOURTEEN days after being served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to SEVENTEEN days because this Report and Recommendation is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report and Recommendation objected to, and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within FOURTEEN days after being served with a copy thereof. As is made clear above, this period is likewise extended to SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).