United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
DUNN WETTRE. UNITED STATES MAGISTRATE JUDGE
the Court is plaintiffs motion to remand this foreclosure
action to the Superior Court of New Jersey, Bergen County.
ECF No. 2. Defendant pro se Ellen Heine opposes the
motion. ECF No. 10. The Honorable Susan D. Wigenton,
U.S.D.J., referred this motion to the undersigned for a
Report and Recommendation. Having considered the parties'
written submissions and for the reasons set forth below, the
Court recommends that the motion to remand be
23, 2018, plaintiff JPMorgan Chase Bank, N.A.
("JPMorgan") filed a foreclosure action in the
Superior Court of New Jersey, Chancery Division, Bergen
County against defendants Ellen Heine, McElroy Deutsch
Mulvaney & Carpenter, LLP ("McElroy Deutsch"),
Peter J. Van Dyke, South Brunswick, the State of New Jersey,
and the United States of America. Complaint, ECF No. 1-1. The
Complaint alleges that in 2005, Edwin Gilbert executed a Home
Equity Line of Credit Agreement secured by a mortgage in
favor of JPMorgan to purchase real property in Garfield, New
Jersey. Id. ¶¶ 1-2. The property was
deeded to Edwin Gilbert and Ellen Heine as joint tenants with
rights of survivorship in 2007, as recorded in the Bergen
County Clerk's Office. Id. ¶ 2. Edwin
Gilbert passed away intestate in July 2011, and at the
direction of the Superior Court of New Jersey, the
estate's personal representative recorded a deed for the
property to Ellen Heine in August 2016. Id. The
mortgage was not assigned and went into default in July 2017.
Id. ¶¶ 4, 7.
brings this foreclosure action against Ellen Heine as the
current record holder of the mortgaged property and against
various creditors of Ellen Heine and the mortgagor, Edwin
Gilbert. Id. ¶ 10. One such creditor, McElroy
Deutsch, filed an answer and notice of appearance in State
Court in August 2018. See Motion to Remand, ECF No.
2-1 at 3, Ex. 3. Defendant, pro se, Ellen Heine
removed the action to this Court in October 2018 asserting,
inter alia, that "[t]here maybe issues that are
within the jurisdiction of the Federal Court."
See ECF No. 1. Plaintiff filed the instant motion to
remand in November 2018. ECF No. 2. Defendant Heine opposes
the motion. ECF No. 10.
to 28 U.S.C. § 1447(c), an action may be remanded to
state court where the removal was procedurally defective or
if the district court determines that it lacks subject matter
jurisdiction over the action. "[T]he 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 statutes are to be strictly construed, with all
doubts to be resolved in favor of remand." Brown v.
JEVIC, 575 F.3d 322, 326 (3d Cir. 2009).
moves to remand on the following grounds: lack of subject
matter jurisdiction, violation of the "forum defendant
rule," and failure to comply with the rule of
unanimity. The Court will address each in turn.
Subject Matter Jurisdiction
defendant may remove a civil action filed in state court if
the federal court would have had original jurisdiction over
the action. 28 U.S.C. § 1441(a). The notice of removal
asserts that this action may involve issues "within the
jurisdiction of the Federal Court" including
"questions regarding bankruptcy, and interstate banking
matters," and parties and events "over whom the
state court does not have jurisdiction." ECF No. 1. The
Court recommends a finding that subject matter does not exist
over this action.
No. Federal Question Jurisdiction
presence or absence of federal-question jurisdiction is
governed by the 'well-pleaded complaint rule,' which
provides that federal question jurisdiction exists only when
a federal question is presented on the face of the plaintiffs
properly pleaded complaint." Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Plaintiffs Complaint
solely asserts state law claims for foreclosure of the
mortgage. No. federal claims appear on the face of the
Complaint. As the Third Circuit explains: "[i]nasmuch as
the complaint in this case is a straightforward state-law
foreclosure complaint, it does not provide a basis for
federal question jurisdiction and thus this action could not
have originally been brought in federal court."
Deutsche Bank Nat'l Tr. Co. v. Harding,
655 Fed.Appx. 113, 115 (3d Cir. 2016). Accordingly, federal
question jurisdiction does not exist over this matter.
No Diversity Jurisdiction
forum defendant rule, codified at 28 U.S.C. § 1441(b)(2)
provides that "[a] civil action otherwise removable
solely on the basis of [diversity jurisdiction] may not be
removed 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." Defendant Heine resides in Paterson,
New Jersey and is a citizen of the State. Even if there were
complete diversity between plaintiff ...