Filed: Jan. 07, 2016
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-2897 _ SANTANDER BANK v. STEVE M. HOSANG; MRS. STEVE M. HOSANG, HIS WIFE; UNITED STATES OF AMERICA Steve HoSang, Appellant _ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1:15-cv-01981) District Judge: Honorable Noel L. Hillman _ Submitted Pursuant to Third Circuit LAR 34.1(a) December 18, 2015 Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges (Opinion filed:
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-2897 _ SANTANDER BANK v. STEVE M. HOSANG; MRS. STEVE M. HOSANG, HIS WIFE; UNITED STATES OF AMERICA Steve HoSang, Appellant _ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1:15-cv-01981) District Judge: Honorable Noel L. Hillman _ Submitted Pursuant to Third Circuit LAR 34.1(a) December 18, 2015 Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges (Opinion filed: ..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2897
___________
SANTANDER BANK
v.
STEVE M. HOSANG;
MRS. STEVE M. HOSANG, HIS WIFE;
UNITED STATES OF AMERICA
Steve HoSang,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1:15-cv-01981)
District Judge: Honorable Noel L. Hillman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 18, 2015
Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges
(Opinion filed: January 7, 2016 )
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
On March 17, 2015, days after Santander Bank, N.A., mailed Steve M. HoSang a
notice of a motion for entry of final judgment in a state foreclosure action in the New
Jersey Superior Court, HoSang removed the foreclosure action to the United States
District Court for the District of New Jersey. In his notice of removal, he cited 28 U.S.C.
§ 1443, stating that Santander Bank’s filing of a foreclosure action in state, instead of
federal, court resulted in a denial of (or his inability to enforce) his civil rights. He
argued that Santander Bank did not have standing to bring the action, and that he could
not exercise his constitutional right to confront Santander Bank because it is a
corporation. He elaborated on his standing arguments in an “initial brief” that he filed in
support of his notice of removal. (HoSang argued that the foreclosure complaint should
be quashed because Santander Bank should not be permitted to stand in the place of the
original lender or creditor.) In the beginning of May, HoSang filed a motion for default
judgment because Santander Bank had not appeared in the action or responded to the
notice of removal. (HoSang asserted that Santander Bank had been served.)
One day after final judgment was entered in the foreclosure action in favor of
Santander Bank, counsel for the bank wrote to the District Court to state that Santander
Bank was “only advised of the removal by Defendant HoSang over the past few days and
just discovered Mr. HoSang’s motion.” Santander Bank requested an extension of time
to file a response and a motion to remand. The District Court allowed the extension (to
which HoSang objected with alleged proof of service of his notice of removal and motion
for default). On June 17, 2015, Santander Bank filed the response and motion.
2
In support of remand under 28 U.S.C. § 1447(c), Santander Bank argued that
HoSang improperly and untimely removed the matter to federal court in an attempt to
engage in forum shopping. Santander also contended that removal on the basis of
diversity jurisdiction under 28 U.S.C. § 1332 was improper under § 1441(b) and the
“forum defendant rule” because HoSang was a citizen of the forum state.
The District Court granted Santander Bank’s motion and denied the motion for
default judgment as moot. The District Court remanded the matter to state court. The
District Court concluded that although HoSang cited § 1443 in his notice of removal, he
also sought to premise jurisdiction on 28 U.S.C. § 1332(a). The District Court ruled that
“neither provision establishes subject matter jurisdiction over plaintiff’s state court
foreclosure action.” The District Court more specifically determined that removal under
§ 1443 was improper because no federal question was presented on the face of the
complaint and the notice of removal merely had defenses or presumed counterclaims
based on alleged violations of federal law. The District Court also stated that HoSang’s
New Jersey citizenship defeated any attempt at removal under § 1441(b).
HoSang appeals. In addition to contesting the entry of judgment by the state court,
HoSang asserts that the District Court had jurisdiction to hear his action. He maintains
that he raised constitutional issues, namely challenges under the Sixth and Eleventh
Amendments based on how he was treated by the state trial court and the clerk of court.
In its brief and in a motion, Santander Bank asks us to dismiss the appeal for lack of
3
jurisdiction. Alternatively, in its motion, Santander Bank requests that we summarily
affirm the District Court’s order. Hosang opposes the motion.1
We grant Santander Bank’s motion to dismiss in part, and we will dismiss this
appeal to the extent that we lack jurisdiction over the District Court’s remand order.
Section 1447(d) provides that a remand order is “not reviewable on appeal or otherwise”
unless the removal in the first instance was made pursuant to 28 U.S.C. §§ 1442 or 1443.
28 U.S.C. § 1447(d). The Supreme Court has interpreted this provision to mean that an
appeals court has no jurisdiction to review orders that were entered pursuant to a district
court’s authority to remand under § 1447(c), namely those remand orders that are based
on “any defect in removal procedure” or a lack of subject matter jurisdiction, whether
erroneous or not.2 See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229-
30 (2007) (discussing Thermtron Prods., Inc. v. Hermansdorfer,
423 U.S. 336 (1976), and
Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996)). Accordingly, we need not and
do not review the District Court’s determination that it lacked subject matter jurisdiction
because the diversity requirement was not met. See Davis v. Glanton,
107 F.3d 1044,
1
Santander Bank also presents a motion to supplement the appendix, which has also been
construed as a motion to expand the record.
2
On appeal, Santander Bank also presents the argument that the removal was untimely.
We do not reach the question. We note that not only did the District Court not rule on the
basis of timeliness, but also that it is unclear whether the District Court could have
remanded based on untimeliness given when Santander Bank responded to the notice of
removal. Ariel Land Owners, Inc. v. Dring,
351 F.3d 611, 613 (3d Cir. 2003). (Because
it is unnecessary to our analysis, we also do not resolve the service question that the
parties dispute.)
4
1047 (3d Cir. 1997) (dismissing appeal for lack of jurisdiction “insofar as it is predicated
on § 1441”).
We have jurisdiction to determine whether remand was proper insofar as removal
was sought under § 1443. See Davis, 107 F.3d at 1047. We exercise plenary review over
the underlying basis for remand to the extent it involves a legal question. See Lazorko v.
Pa. Hosp.,
237 F.3d 242, 247 (3d Cir. 2000).
Upon review, we conclude that the District Court did not err in ruling that HoSang
could not remove the foreclosure action under the provision he invoked, § 1443. As the
District Court noted, jurisdiction under this provision must be plain from the face of the
complaint. Davis, 107 F.3d at 1047. Furthermore, for § 1443(1) to apply,3 “a state court
defendant must demonstrate both (1) that he is being deprived of rights guaranteed by a
federal law ‘providing for . . . equal civil rights’; and (2) that he is ‘denied or cannot
enforce that right in the courts’ of the state.”
Davis, 107 F.3d at 1047 (quoting Georgia v.
Rachel,
384 U.S. 780, 788 (1966)). The civil rights at issue must involve matters of
racial equality.
Id. HoSang, in presenting the foreclosure complaint, and arguing, inter
alia, that he was being deprived of a confrontation right, did not show that he was entitled
to removal under § 1443.
3
HoSang did not allege in the District Court, and does not argue on appeal, anything that
might allow removal under § 1443(2), which relates to the execution of certain duties by
federal officers. See 28 U.S.C. § 1443(2); City of Greenwood v. Peacock,
384 U.S. 808,
824 (1966).
5
Accordingly, to the extent that we have jurisdiction over the District Court’s order
remanding the matter to state court, we will affirm it.4 We grant in part the motion to
dismiss for lack of jurisdiction, and we will dismiss this appeal to the extent that we do
not have jurisdiction over the remand order. The “motion to dismiss appeal or for
summary action” is otherwise denied. The motion to supplement the appendix is granted,
but, to the extent that Santander Bank seeks to expand the record with its supplemental
appendix, the request is denied.
4
We also discern no error in the District Court’s decision to deny HoSang’s motion for
default judgment as moot in light of the remand.
6
