Filed: Jul. 24, 2014
Latest Update: Jul. 24, 2014
Summary: MAGISTRATE JUDGE'S REPORT STEPHEN C. RIEDLINGER, Magistrate Judge. Before the court is a Motion to Remand Case Back to 19 th District Court filed by plaintiff, Donna Renee Hamilton. Record document number 9. The motion is opposed. 1 Dean Morris, L.L.P. filed a Notice of Removal on June 6, 2014. 2 The action removed by Dean Morris originated in state court on July 24, 2008 when CitiMortgage, Inc. filed a Petition to Enforce Security Interest by Ordinary Process against Donna Renee Hamilton
Summary: MAGISTRATE JUDGE'S REPORT STEPHEN C. RIEDLINGER, Magistrate Judge. Before the court is a Motion to Remand Case Back to 19 th District Court filed by plaintiff, Donna Renee Hamilton. Record document number 9. The motion is opposed. 1 Dean Morris, L.L.P. filed a Notice of Removal on June 6, 2014. 2 The action removed by Dean Morris originated in state court on July 24, 2008 when CitiMortgage, Inc. filed a Petition to Enforce Security Interest by Ordinary Process against Donna Renee Hamilton...
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MAGISTRATE JUDGE'S REPORT
STEPHEN C. RIEDLINGER, Magistrate Judge.
Before the court is a Motion to Remand Case Back to 19th District Court filed by plaintiff, Donna Renee Hamilton. Record document number 9. The motion is opposed.1
Dean Morris, L.L.P. filed a Notice of Removal on June 6, 2014.2 The action removed by Dean Morris originated in state court on July 24, 2008 when CitiMortgage, Inc. filed a Petition to Enforce Security Interest by Ordinary Process against Donna Renee Hamilton.3 Citimortgage alleged that Hamilton defaulted on a promissory note and mortgage, and sued to enforce the mortgage and recover the amounts owed under the note.4 The case proceeded in state court and CitiMortgage ultimately obtained a foreclosure judgment against the plaintiff. That judgment was later annulled by a second judgment signed on January 10, 2014.5 However, Hamilton moved to set aside the second judgment because she claimed it stated that she was present for the hearing when she was not in fact present.6 Therefore, she alleged that CitiMortgage, Dean Morris, John C. Morris, IV and Charles Heck were in contempt because they willfully deceived the state court by asserting that they had properly served her with notice of the hearing.
Before the hearing on her motion to set aside the second judgment,7 Hamilton filed a Petition to Rescind Sale and for Damages (hereafter, "Petition to Rescind Sale") in which she named as defendants CitiMortgage, Dean Morris, Morris and Heck.8 Hamilton alleged that the defendants should be held jointly liable for unfair and deceptive practices in connection with the foreclosure on her property. Hamilton sought to rescind the sheriff's sale, and also sought general, statutory, actual and punitive damages, along with attorney's fees and costs for violations of state law and willful and negligent violations of provisions of the Fair Credit Reporting Act ("FCRA") found at 15 U.S.C. § 1681s-2(b).9
In its Notice of Removal Dean Morris alleged that it was served with Hamilton's Petition to Rescind Sale on May 8, 2014. Dean Morris alleged that the Petition to Rescind Sale alleged claims under 15 U.S.C. § 1681s, therefore, the petition was removed based on federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441, and asserted that the removal was timely under 28 U.S.C. § 1446(b)(3). Dean Morris also alleged that the court had supplemental jurisdiction over all of the plaintiff's other claims based on 28 U.S.C. §§ 1367 and 1441.
Hamilton moved to remand. Hamilton submitted her own affidavit and argued that the case should be remanded for the following reasons: (1) CitiMortgage and Dean Morris removed the case to avoid being held in contempt and liable for their deceptive actions; and (2) she does not consent to removal and does not agree to the court having jurisdiction over this case.
None of Hamilton's arguments are a valid basis for finding the case was improperly removed and remanding it to state court. The reason for the removal of the case by Dean Morris was the Petition to Rescind Sale, and it plainly alleges a claim under a federal law — § 1681s-2(b) of the FCRA. Pleading this federal cause of action gave Dean Morris, added as a party defendant when Hamilton filed her Petition to Rescind Sale, the right to remove the case under § 1441(c).10 Subsection (c) states, in relevant part, as follows:
(c)Joinder of Federal law claims and State law claims.—(1) If a civil action includes—
(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph(B).
This provision is not limited to removal by defendants. In a civil action, if a claim is pled that falls within federal question jurisdiction under § 1331, the entire action may be removed, even though this federal question claim is joined with a claim that is not removable by statute, or a claim not within the district court's original or supplemental jurisdiction.11 Therefore, as Dean Morris alleged in its Notice of Removal, this court has subject matter jurisdiction based on Hamilton's federal claim asserted under the FCRA, and supplemental jurisdiction over the remaining state law claims under 28 U.S.C. § 1367. Plaintiff's Motion to Remand is factually and legally unsupported and should be denied.12
RECOMMENDATION
It is the recommendation of the Magistrate Judge that the Motion to Remand Case Back to 19th District Court filed by Donna Renee Hamilton be denied.
