United States District Court, D. Delaware
THE BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee for the Holders of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FHAMS 2006-Fa5, By First Horizon Home Loans, a Division of First Tennessee Bank National Association, Master Servicer, in its Capacity as Agent for the Trustee under the Pooling and Servicing Agreement, Plaintiff,
JAMES A. HEGEDUS and VIRGINIA E. HEGEDUS, Defendants.
Superior Court of the State of Delaware in and for Sussex
County CA. No. S15L-12-053
HONORABLE LEONARD P. STARK, UNITED STATES DISTRICT JUDGE.
September 5, 2018, Defendants James A. Hegedus and Virginia
E. Hegedus ("Defendants") filed a notice of removal
of Delaware State Court CA. No. SI 5L-12-053. (D.I. 1)
Defendants appear pro se and have paid the filing
fee. Plaintiff moves for remand (D.I. 5) and Defendants move
for an extension of time to respond to the motion and for
injunctive relief (D.I. 5, 10). For the reasons discussed
below, the Court will grant the motion to remand the matter
to the Superior Court of the State of Delaware in and for
Sussex County, will grant the motion for an extension of time
and consider Defendants' opposition timely filed, and
will deny without prejudice the motion for injunctive relief.
FACTUAL AND PROCEDURAL BACKGROUND
December 29, 2015, Plaintiff filed an In Rem Scire Facias
mortgage foreclosure complaint in the Superior Court of the
State of Delaware in and for Sussex County, CA. No. S15L-
12-053. The complaint sought foreclosure of property located
in Delaware. On December 18, 2017, the Superior Court ruled
in favor of Plaintiff and against Defendants. (D.I. 4-1)
Defendants appealed to the Delaware Supreme Court, No. 21,
2018. (D.I. 4-3 at 10) On July 10, 2018, the Delaware Supreme
Court affirmed the Superior Court on the basis of and for the
reasons stated by the Superior Court in its December 18, 2017
opinion. See Hegedus v. Bank of New York Mellon,
2018 WL 3375360 (Del. 2018) (table). Defendants sought
rehearing en banc, which was denied on July 25, 2018.
(D.I.4-3 at 2)
removed the matter on September 5, 2018. The notice of
removal states that the case was brought under State law, but
there is federal question jurisdiction under 42 U.S.C. §
1983 for violation of constitutional rights under the Fifth
and Fourteenth Amendments. (D.I. 1) Plaintiff timely filed a
motion to remand. See 28 U.S.C. § 1447(c).
Plaintiff seeks remand based on the well-pleaded complaint
rule, the Rooker-Feldman Doctrine, and res judicata.
exercise of removal jurisdiction is governed by 28 U.S.C.
§ 1441(a) which states that, in order to remove a civil
action from state court to federal court, a district court
must have original jurisdiction by either a federal question
or diversity of citizenship. See 28 U.S.C.
§§ 1331, 1332, 1441(a). The statute is strictly
construed, requiring remand to state court if any doubt
exists over whether removal was proper. See Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941).
will remand a removed case "if at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction." 28 U.S.C. § 1447(c). The
party seeking removal bears the burden to establish federal
jurisdiction. See Steel Valley Auth. v. Union Switch
& Signal Div. Am. Standard, Inc., 809 F.2d 1006,
1010 (3d Cir. 1987); Zoren v. Genesis Energy, L.P.,
195 F.Supp.2d 598, 602 (D. Del. 2002). In determining whether
remand based on improper removal is appropriate, the court
"must focus on the plaintiffs complaint at the time the
petition for removal was filed," and assume all factual
allegations therein are true. Steel Valley Auth.,
809 F.2d at 1010.
removed this case pursuant to the federal removal statute, 28
U.S.C. § 1441. Defendants' primary basis for removal
is federal question jurisdiction under 28 U.S.C. § 1331
("The district courts shall have original jurisdiction
of all civil actions arising under die Constitution, laws, or
treaties of the United States."). The notice of removal
purports to base § 1331 jurisdiction upon 42 U.S.C.
§ 1983 by reason of violations of Defendants'
constitutional rights. (D.I. 1 at 7) Defendants contend that
when the case was filed in state court it raised questions
under state law.
moves for remand based upon the well-pleaded complaint rule.
In commencing an action, it is for the plaintiff to decide
whedier to assert a federal claim, a state claim, or both.
See Caterpillar Inc. v. Williams,482 U.S. 386, 392
(1987). Under die well-pleaded complaint rule, a cause of
action '"arises under' federal law, and removal
is proper, only if diere is a federal question presented on
die face of die plaintiffs properly pleaded complaint."
Dukes v. U.S. Healthcare,57 F.3d 350, 353 (3d Cir.
1995); see also Homes Grp., Inc. v. Vomado Air
Circulation Sjs., Inc.,535 U.S. 826, 832 (2002).
'"[A] case may not be removed to federal court on
die basis of a federal defense,' even if the plaintiffs
complaint anticipates such defense."
Caterpillar, 482 U.S. at 392. "Nor can [die
d]efendant create federal jurisdiction by asserting federal
defenses and/or counterclaims to [die p]laintiffs state law
foreclosure complaint." Green Tree ...