United States District Court, D. New Jersey
matter comes before the Court on the motion of the plaintiff,
Wells Fargo Bank, N.A., to remand this removed mortgage
foreclosure case to State court. (ECF no. 3) For the reasons
stated herein, the motion to remand pursuant to 28 U.S.C.
§ 1447 is granted. Defendant's motion for a
preliminary injunction (ECF no. 19) is administratively
a state-law mortgage foreclosure action, filed in state court
in October, 2010 under docket no. F-049344-10 (Superior
Court, Chancery Division, Sussex County). On August 10, 2011,
the state court granted Wells Fargo's motion for summary
judgment, and the foreclosure proceeded as an uncontested
matter. A final judgment of foreclosure was entered on
September 13, 2013. Ms. Moore's appeal to the Superior
Court, Appellate Division, was dismissed as untimely. A
filing in bankruptcy, and a successful motion to lift the
automatic stay, followed.
Fargo purchased the property at a sheriffs sale held on March
16, 2016, On April 6, 2017, the state court issued a writ of
possession. On April 25, 2017, the County Sheriff posted the
writ, setting the date of eviction for May 22, 2017.
days in advance of the scheduled eviction, on May 17, 2017,
the defendant filed a notice of removal of this case to
federal court. (ECF no. 1)
before this Court is Wells Fargo's motion to remand the
action to state court, pursuant to 28 U.S.C. § 1447.
(ECF no. 3) The motion was filed timely within 30 days after
removal. See 28 U.S.C. § 1447. Ms. Moore, after
receiving extensions of time, has filed papers in opposition.
(ECF nos. 8-13, 15-18) Wells Fargo has filed a reply. (ECF
no. 14) The matter is fully briefed and ripe for decision.
Moore removed this case pursuant to the federal removal
statute, 28 U.S.C. § 1441. Under 28 U.S.C. §
1441(a), a defendant may remove a civil action from the state
court if the case could have been brought originally in
federal court. What that generally means is that the
complaint either asserts a federal-law claim, see 28
U.S.C. § 1331, or the parties are citizens of different
states and the amount in controversy exceeds $75, 000,
see 28 U.S.C. § 1332(a).
party asserting federal jurisdiction in a removal case bears
the burden of showing, at all stages of the litigation, that
the case is properly before the federal court."
Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir.
2007). Removal is strictly construed and doubts are resolved
in favor of remand. See Samuel-Bassett v. Kia Motors Am.,
Inc., 357 F.3d 392, 396 (3d Cir. 2004).
must be timely and procedurally proper under the statute.
Removal of this case, however, was untimely, by a matter of
years. The removal statute, 28 U.S.C. g 1446(b), requires
that a notice of removal be filed within 30 days of the
defendant's receipt of the original state-court
complaint, by service or otherwise. The complaint in this
foreclosure action (ECF no. 3-3) was filed in state court on
October 10, 2010. The docket shows proof of service as of
December 2010; at any rate, Ms. Moore filed an answer on
April 14, 2011. (ECF no. 3-4 at 3) Any notice of removal,
then, was required to have been filed no later than May 14,
Notice of Removal, however, was not filed until six years
later, on May 17, 2017. (ECF no. 1) Indeed, this was some
three and one half years after final judgment had been
entered in state court, The 30-day time limit is a procedural
bar to removal, independent of any jurisdictional question.
See Farina v. Nokia Inc., 625 F.3d 97, 114 (3d Cir.
2010) ("It is well settled that § 1446(b)'s
thirty-day time limit for removal is a procedural provision,
not a jurisdictional one.") Removal was obviously
improper. The motion to remand is therefore granted pursuant
to 28 U.S.C. § 1447.
reasons stated above, the motion (ECF no. 3) of the
plaintiff, Wells Fargo Bank, N.A., to remand this case to
state court, pursuant to 28 U.S.C. § 1447, is GRANTED.
Because the case is not properly in this Court, the
defendant's later-filed motion for a preliminary
injunction (ECF no. 19) is administratively terminated. An
appropriate order accompanies this Opinion.