Opinion
Civil Action 23-23393 (JKS) (MAH)
02-27-2024
ARKADI MERKIN AND MARINA BELAYA, Plaintiffs, v. PAVEL BELYI AND NATALIA BELAIA, Defendants.
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER, U.S.MJ.
I. Introduction
This matter comes before the Court upon its sua sponte Order to Show Cause as to whether this matter should be remanded for lack of subject matter jurisdiction or defective removal, as well as why the Court should not impose costs and expenses against Defendants, Pavel Belyi and Natalia Belaia (“Defendants”) pursuant to 28 U.S.C. 1447(c). See generally Order to Show Cause, D.E. 6. On January 26, 2024, Defendants filed their response to the Court's Order to Show Cause. See generally Defs.' Brief, D.E. 7. Plaintiffs Arkadi Merkin and Marina Belaya (“Plaintiffs”) replied on February 15, 2024. See generally Pls.' Reply, D.E. 13. For the reasons discussed below, the Undersigned respectfully recommends this matter be remanded for lack of subject matter jurisdiction and defective removal.
II. Background
This matter arises out of Plaintiffs' Complaint for Ejectment against Defendants pursuant to N.J.S.A. 2A:35-1 et seq. Defendants are Plaintiffs' parents and immigrated to the United States from Russia.Prior to moving to the United States, Plaintiffs signed an I-864 Affidavit of Support (“Affidavit of Support”) contracting to provide Defendants with support to maintain Defendants of at least 125 percent of the Federal Poverty Guidelines. Defs.' Brief, Ex. 2, Affidavit of Supp., D.E. 7, at 28-37. According to Plaintiffs, since approximately March 2020, Defendants have resided in the basement of Plaintiffs' home without their consent. See Notice of Removal, Compl., D.E. 1, at 7.
It is unclear from the parties' submissions when Defendants immigrated to the United States.
Any page numbers cited throughout this R&R refer to page numbers assigned by ECF.
On May 11, 2022, Plaintiffs filed a Complaint for Ejectment against Defendants in the Superior Court of New Jersey, Law Division, Morris County, Special Civil Part. See id. at 7-9. On June 16, 2022, Defendants filed their answer and counterclaims, seeking enforcement of the Affidavit of Support until Defendants became United States citizens, as well as costs for renovations made to Plaintiffs' basement. See Decl. of Philip B. Vinick, Ex. A., Defs.' Counterclaim, D.E. 3, at 7-17. Defendants also moved to transfer the matter from the Special Civil Part to the Law Division because the damages exceeded $20,000. See Notice of Removal, Ex. G., Consent Order, D.E. 1, at 55-57. On July 25, 2022, the parties entered into a Consent Order which required Defendants to vacate Plaintiffs' premises. Id. The Consent Order also provided that Defendants' motion to transfer the action from the Special Civil Part to the Law Division could proceed. Id. At some point following the Consent Order, the state court ordered arbitration of the transferred matter.
It is unclear from the parties' submissions when this occurred.
On December 7, 2023, Defendants' claims were decided in the the mandated arbitration. Defs.' Brief, D.E. 7, at ¶ 7. The arbitrator determined that neither party possessed causes of action against each other, and no party was awarded any sum of money. Defs.' Brief, Ex. 6, Report & Arb. Award, D.E. 7, at 58. On December 21, 2023, Defendants filed a notice for trial de novo. See Notice of Removal, Ex. 4, Trial De Novo Request Form, D.E. 1, at 72. On December 22, 2023, a trial date of February 26, 2024, was assigned to the action. Decl. of Philip B. Vinick, Ex. B., Trial Proceeding Notice, D.E. 3, at 17.
On December 28, 2023, Defendants removed the matter to federal court. See generally Notice of Removal, D.E. 1. Defendants generally averred removal was appropriate because of federal question jurisdiction. Id. at 1. Further, Defendants claimed removal was timely based on the December 21, 2023 filing for a trial de novo which “reset[] the clock.” Id. at 2. On January 4, 2024, Plaintiffs' counsel filed a “declaration” which was in sum and substance a motion to remand. See generally Decl. of Philip B. Vinick, D.E. 3. Plaintiffs' counsel alleged that the removal was untimely. Id. at ¶¶ 5-6. On January 10, 2024, Defendants' counsel responded in turn with his own declaration. See Decl. Leo L. Grigolia, D.E. 5. This also was in sum and substance a reply regarding remand. Id. Defendants' counsel reiterated that the notice for a new trial “set the clock back” as to removal. Id. at ¶¶ 6-7.
On January 12, 2024, this Court issued an Order to Show Cause as to whether this matter should be remanded for lack of subject matter jurisdiction or defective removal, as well as whether the imposition of costs and expenses against Defendants would be appropriate pursuant to 28 U.S.C. 1447(c). See generally Order to Show Cause, D.E. 6.
III. Analysis
Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court.” A defendant may remove an action brought originally in state court only if the plaintiff could have filed the complaint within the original jurisdiction of the federal court. 28 U.S.C. § 1441(b); see also 28 U.S.C. §1441(a) (“Except as otherwise provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . to the district court of the United States . . . ”). After a case has been removed, the district court, however, may nonetheless remand it to state court if the removal was procedurally defective or subject matter jurisdiction is lacking. See 28 U.S.C. § 1447(c).
A. Subject Matter Jurisdiction
Defendants argue remand is improper as the Court possesses subject matter jurisdiction because Plaintiffs' claims arise under 8 U.S.C. § 1183a(e)(I). Defs.' Brief, D.E. 7, at 5. Defendants claim that because the statute provides that an action to enforce an Affidavit of Support may be brought in “any appropriate court,” this Court has federal question jurisdiction over the matter. Id. Defendants also appear to argue that the Court should exercise supplemental jurisdiction and claims that the factors of convenience, fairness, and comity weigh in favor of maintaining jurisdiction. Id. at 14-15.
As to convenience, Defendants argue that “federal court has superior competence in adjudicating the enforceability of federal law and regulations” and this Court will not be “burdened with the duplicate procedure of discovery.” Id. With respect to the fairness factor, Defendants argue because state courts rarely encounter the enforceability of an affidavit of support, it is more appropriate for this Court to determine the matter. Id. With respect to comity, Defendants argue that the factor weighs in their favor because “there is not [an] issue of parallel proceedings, but a distinct matter of removal.” Id. This Court struggles to find how any arguments regarding supplemental jurisdiction are appropriate in this context. Nor do Defendants offer a connection between the facts of this case, and supplemental jurisdiction. In any event, as the Court lacks subject jurisdiction over any of the claims in this matter, it will not exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Kalick v. United States, 35 F.Supp.3d 639, 649 (D.N.J. 2014) (“Absent extraordinary circumstances, ‘jurisdiction [over plaintiff's state law claims] should be declined where the federal claims are no longer viable.'”) (quoting Shaffer v. Board of Sch. Dirs. of Albert Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984)) (modification in Kalick), aff'd, 604 Fed.Appx. 108 (3d Cir.), cert. denied, 577 U.S. 860 (2015).
A federal court lacking subject matter jurisdiction over a case must remand the matter back to state court. 28 U.S.C. § 1447(c); see Farina v. Nokia, Inc., 625 F.3d 97, 114 (3d Cir. 2010) (noting that a federal court cannot proceed without subject matter jurisdiction, nor can a party waive such jurisdiction). As the party asserting federal jurisdiction by way of removal, the defendant bears the burden of establishing that subject matter jurisdiction exists at all stages in which the case is properly before the federal court. Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Section 1441 is to be construed strictly; all doubts must be resolved in favor of remand. Id.; see also Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (“[R]emoval statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.”) (internal quotations marks and citations omitted); Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985) (“Because lack of [federal] jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts should be resolved in favor of remand.”).
Defendants have failed to establish that this Court possesses subject matter jurisdiction over the instant matter. Plaintiffs' claims in their Complaint for Ejectment could not originally have been filed in federal court. See Claus v. Trammel, No. 18-1125, 2018 WL 6033482, at *2 (D. De. Nov. 16, 2018) (“Plaintiff filed an ejectment action, based solely on state law. Ejectment does not arise under federal law.”).That Defendants' June 16, 2022 counterclaims might arise under 8 U.S.C. § 1183a(e)(I) does not alter this conclusion. It is well established that Defendants may not manufacture subject matter jurisdiction based on defenses or counterclaims. See Green Tree Serv. LLC v. Dillard, 88 F.Supp.3d 399, 402 (D.N.J. 2015) (“Consequently, because the face of Plaintiff's Complaint identifies no federal question, this Court lacks subject matter jurisdiction, irrespective of Defendants' reliance upon a federal defense and/or assertion of a federal counterclaim.”).
Defendants cite several cases in which federal courts have found jurisdiction where a beneficiary brings suit against a sponsor. Defs.' Brief, D.E. 7, at 11 n.2. However, none of the cited caselaw originates from courts within this Circuit. Further, the procedural posture of those cases is quite different than here. In all of Defendants' cited cases, the plaintiffs were beneficiaries who initiated their actions in federal court to enforce the Affidavit in Support. See Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) (where the plaintiff brought claims seeking financial support under the Affidavit of Support in federal court against ex-husband); Montgomery v. Montgomery, 764 F.Supp.2d 328, 330 (D.N.H. Feb. 9, 2011) (where the plaintiff brought claims seeking specific performance of the Affidavit of Support in federal court against ex-husband); Skorychenko v. Tompkins, No. 08-626, 2009 WL 129977, at *1 (W.D. Wi. Jan. 20, 2009) (where the plaintiff brought claims seeking to enforce provisions of the Affidavit of Support against ex-husband in federal court); Stump v. Stump, No. 04-253, 2005 WL 2757329, at *1 (N.D. Ind. Oct. 25, 2005) (where the plaintiff sought claims seeking financial support from her ex-husband under the Affidavit of Support in federal court); Ainsworth v. Ainsworth, No. 02-1137, 2004 WL 5219037, at *1 (M.D. La. May 27, 2004) (where the plaintiff sought an order requiring the defendant, her ex-husband, to pay her support under the Affidavit of Support in federal court); Tornheim v. Kohn, No. 00-5084, 2002 WL 482534, at *1 (E.D. N.Y. Mar. 26, 2002) (where the plaintiff brought claims seeking enforcement of the Affidavit of support against his father-in-law); Cobb v. Cobb, No. 12-875, 2012 WL 2620524, at *1 (E.D. Ca. July 5, 2012) (where the plaintiff brought claims seeking relief against husband for payment under the Affidavit or Support); Al-Mansour v. Ali Shraim, No. 10-1729, 2011 WL 1457102, at *1 (D. Md. April 14, 2011) (where the plaintiff sought financial support from husband under the Affidavit of Support in federal court). Therefore, the direct claim arose under 8 U.S.C. § 1183. Defendants fail to cite to a single case where, as here, the Title 8 claim was presented as a counterclaim in response to a purely state law cause of action.
B. Defective Removal
Even if this Court had jurisdiction over this matter, Defendants removed the action well out of time. Defendants argue that despite the fact that Plaintiffs' Complaint for Ejectment against Defendants was filed in 2022, their removal is nonetheless timely. Defs.' Brief, D.E. 7, at 17-20. Specifically, Defendants argue that the thirty-day deadline to remove the matter was “reset” when documents were exchanged between the parties which identified a claim of enforcement under the Affidavit of Support. Id. at 19-20. For example, Defendants claim the parties' arbitration memorandum, the arbitration award, and a subsequent proposed settlement offer first alerted Defendants of the possibility of removal. Defendants, relying on Dietrich v. Boeing, 14 F.4th 1089 9th Cir. 2021), contend that prior to the exchange of these documents, the deadline to file their removal was tolled. Id. at 19-20. Defendants also contend that the notice for a trial de novo amounted to amended pleadings, and therefore “set the clock anew” to remove the matter. Id. at 20. Plaintiffs argue Defendants' removal is improper because it is untimely. Pls.' Reply, D.E. 13, at 3-4. Plaintiffs further contend that there is no evidence of amended pleadings or new documents that would “somehow toll the removal window or set the clock anew.” Id. at 3. This Court agrees with Plaintiffs and finds Defendants' removal defective.
A defendant may remove a case to federal court either (1) “within 30 days after the receipt . . . of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based” (pursuant to 28 U.S.C. § 1446(b)(1)), or (2) “if the case stated by the initial pleading is not removable, . . . within thirty days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable” (pursuant to 28 U.S.C. § 1446(b)(3)).
It is apparent to the Court that Defendants' removal is defective. Plaintiffs' Complaint- which asserted purely state law claims-was filed in 2022, and Defendants' removal occurred in December of 2023. Even assuming that the Court possessed subject matter jurisdiction by virtue of Defendants' counterclaims, the removal was clearly untimely. Defendants contend that the aforementioned documents, such as the arbitration memorandum, the arbitration decision, and proposed settlement offer, notified them of the presence of federal jurisdiction in the first instance through their identification of the Affidavit of Support. However, Defendants' own counterclaim in June 2022, sought enforcement under the Affidavit of Support. Although Defendants moved for a transfer of their counterclaim from the Special Civil Part to the Law Division, the record fails to demonstrate any similar attempt to remove this matter in a timely fashion to federal court. Nor do Defendants attempt to explain this discrepancy. The Court therefore struggles to find another explanation for Defendants' delayed removal other than Defendants' receipt of an unfavorable arbitration decision.[
This Court also finds Defendants' reliance on Dietrich, 14 F.4th at 1089, to be misplaced, as the case is not controlling, and the facts are distinguishable. In Dietrich, the Ninth Circuit determined Defendants' removal was not outside the thirty-day requirement for removal, despite Plaintiff's complaint being filed one year prior to removal. Id. at 1092. The Court of Appeals concluded that the thirty-day window to file for removal did not begin until 2019 because until that point all information was “ambiguous or misleading” as to whether the plaintiff's claims against the defendant conferred subject matter jurisdiction. Id. at 1095. The Court of Appeals reasoned that the information the plaintiff disclosed throughout discovery and in the Complaint strategically did not make the possibility of removal apparent to the defendant. Id. The same cannot be said of the present matter. Although Defendants contend they were unaware that the Affidavit of Support was central to this matter prior to November 2023, their counterclaim filed in 2022 is in direct contradiction to this argument.
C. Attorney Fees
Defendants provide paragraphs of law regarding the standard of imposing attorney fees under 28 U.S.C. §1447(c). However, Defendants offer no arguments as to why their removal was not “objectively reasonable” as required by that standard. Rather, Defendants summarily “remind[] [the Court] . . . Defendants are destitute.” Defs.' Brief, D.E. 7, at 22. Plaintiffs counter that there was no justification for Defendants' belated removal of the matter, and requests the Court impose attorney fees under the statute. Pls.' Reply, D.E. 13, at 4-5. Despite Defendants failure to offer any argument as to the reasonableness of their removal, this Court nonetheless finds that the imposition of fees is inappropriate.
Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” However, under the statute, courts are instructed to limit an award of attorney fees “only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005). In the alternative, if an objectively reasonable basis exists, a request for attorney fees should generally be denied. Id. Awarding fees is “left to the court's discretion, with no heavy congressional thumb on either side of the scales.” Id. at 139. Typically, courts award attorney fees where it is clear that the complaint does not state a claim removable to federal court or where minimal research would have revealed the impropriety of removal. Little League Baseball, Inc. v. Welsh Publ'g Group, Inc., 874 F.Supp. 648, 656 (M.D. Pa. 1995); see also Ingemi v. Pelino & Lentz, 866 F.Supp. 156, 163 (D.N.J. 1994).
This Court “gives Defendants the benefit of the doubt” and exercises its discretion to not impose fees under 28 U.S.C. § 1447(c). See Platkin v. Exxon Mobil Corp., No. 22-6733, 2023 WL 4086353, at *4 (D.N.J. June 20, 2023). Defendants' brief suggests research was conducted to support Defendants' belief that they possessed a reasonable basis behind their removal, despite this Court's eventual recommendation. As such, Plaintiffs' request for an award of attorney fees will not be granted.
IV. Conclusion
For the reasons set forth above, the Undersigned respectfully recommends the District Court remand this matter to state court, and that attorney fees are not imposed under 28 U.S.C. 1447(c). The parties have fourteen days to file and serve objections to this Report and Recommendation. See 28 U.S.C. § 636; L. Civ. R. 72.1(c)(2).