United States District Court, D. New Jersey
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as successor-in-interest to all permitted successors and assigns of JP Morgan Chase Bank, as Trustee for Certificateholders of Nomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series 2004-AR1, Plaintiff,
PETER J. CRESCI, JENNIFER L. CRESCI, THE STATE OF NEW JERSEY, Defendants,
AMERICA'S SERVICING COMPANY, WELLS FARGO BANK, N.A., MILSTEAD & ASSOCIATES, LLC, Third-Party Defendants.
MCNULTY, UNITED STATES DISTRICT JUDGE
February 7, 2018, Magistrate Judge Michael A. Hammer filed a
report and recommendation ("R&R, " ECF No. 20)
that this matter be remanded to the Superior Court of New
Jersey, Hudson County, Chancery Division. On February 21,
2018, defendants Peter and Jennifer Cresci filed a timely
objection to the R&R. (ECF No. 21). On March 6, 2018,
plaintiff and third-party defendants submitted papers in
opposition to that objection. (ECF Nos. 22, 23).
standard of review is de novo.Magistrate Judge
Hammer determined that this matter should be remanded to the
state court because defendants removed the complaint beyond
the thirty-day time limit provided in 28 U.S.C. §
1446(b). Magistrate Judge Hammer also found that this court
lacked subject-matter jurisdiction-i.e., that removal was
based on federal-question jurisdiction, pursuant to 28 U.S.C.
§ 1331, but the complaint alleged no federal claim.
Peter and Jennifer Cresci object, stating that the 30-day
deadline to remove did not begin running on June 15, 2017,
because they had not been served. (ECF No. 21). They do not
address subject-matter jurisdiction. (ECF No. 21).
no ruling as to the issue of the 30-day deadline and the
adequacy of service. It does not matter. Removal, whether
timely or not, was improper.
the court thus lacks federal-question jurisdiction. See 28
U.S.C. § 1331. The plaintiff asserted two counts in the
complaint, both of them based on state law. (ECF No. 1). The
complaint does not assert any federal claims. (ECF No. 1;
R&R). Defendants assert federal counterclaims, but
federal-question jurisdiction cannot be premised on
counterclaims. Federal-question jurisdiction must be based on
a federal right asserted in the complaint. Holmes Grp.,
Inc. v. Vomado Air Circulation Sys., Inc., 535 U.S. 826,
831 (2002); see also Louisville & Nashville R.R. Co.
v. Mottley, 211 U.S. 149 (1908). It is well settled that
"a counterclaim-which appears as part of the
defendant's answer, not as part of plaintiffs
complaint-cannot serve as the basis for 'arising
under' jurisdiction." Holmes Grp., Inc.,
535 U.S. at 831. Federal-question jurisdiction exists
"only when a federal question is presented on the face
of the plaintiffs properly pleaded complaint."
Holmes Grp., Inc., 535 U.S. at 831 (citing
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (emphasis added)).
the case could not be removed pursuant to the court's
diversity jurisdiction, even if the prerequisites of 28
U.S.C. § 1332(a) (complete diversity of citizenship,
matter in controversy exceeding $75, 000) were met. Based on
the "home state" exception of 28 U.S.C. §
1441(b)(2), a case is not removable to federal court based on
diversity jurisdiction "if any of the parties in
interest properly joined and served as defendants is a
citizen of the State in which such action is brought."
Defendants list their place of residence as Bayonne, New
Jersey, (ECF Nos. 1, 21), and this case was initiated in New
Jersey state court. There is no allegation or contention that
defendants are citizens of any state but New Jersey. Removal
based on diversity jurisdiction therefore would not have been
I will adopt the R&R and remand this case to the Superior
Court of New Jersey, Hudson County, Chancery Division.
appropriate order accompanies this opinion.
 Under [28 U.S.C. § 636(b)(1)]
subparagraph (B), a district court may refer a dispositive
motion to a magistrate judge "to conduct hearings,
including evidentiary hearings, and to submit to a judge of
the court proposed findings of fact and recommendations for
the disposition." 28 U.S.C. § 636(b)(1)(B). The
product of a magistrate judge, following a referral of a
dispositive matter, is often called a "report and
recommendation." Parties "may serve and file
specific written objections to the proposed findings and
recommendations" within 14 days of being served with a
copy of the magistrate judge's report and recommendation.
Fed.R.Civ.P. 72(b)(2). If a party objects timely to a
magistrate judge's report and recommendation, the
district court must "make a de novo determination of
those portions of die report or specified proposed findings
or recommendations to which objection is made." 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P.
72(b)(3). If a party does not object timely to a magistrate
judge's report and recommendation, the party may lose its
right to de novo review by die district court.
Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007)
(citing Henderson v. Carlson, 812 F.2d 874, 878-79
(3d Cir. 1987)). However, we have held that because a
district court must take some action for a report and
recommendation to become a final order and because
"[t]he authority and die responsibility to make an
informed, final determination ... remains witii the judge,
" Mathews v. Weber, 423 U.S. 261, 271, 96 S.Ct.
549, 46 L.Ed.2d 483 (1976), even absent objections to the
report and recommendation, a district court should
"afford some level of review to dispositive legal issues
raised by die report, " Henderson, 812 F.2d at
878. We have described this level of review as "reasoned
consideration." Id. If a party fails to object
timely to die magistrate judge's report and
recommendation, we generally review die district court's
order for plain error. Brightwell v. Lehman, 637
F.3d 187, 193 (3d Cir. 2011); Nara, 488 F.3d at 194.
ButseeLeyva v. Williams, 504 F.3d 357, 363-64 (3d
Cir. 2007) (applying de novo appellate review when a
pro se litigant did not timely object to a
magistrate judge's report and recommendation and die
magistrate judge did not "warnf ] that [die
litigant's] failure to object to die Magistrate
Judge's report would result in forfeiture of his
rights"); Henderson, 812 F.2d at 878 n.4
("[W]hen the district court elects to exercise its power
to review a magistrate's report de novo, a
party's previous failure to object becomes
EEOC v. City of Long Branch, 866 F.3d 93,
99-100 (3d Cir. 2017) (internal footnotes omitted).
 Defendants Peter and Jennifer Cresci
filed their notice of removal on October 26, 2017. (ECF ...