United States District Court, D. Maryland
LAURA H.G. O’SULLIVAN., Plaintiff,
ERIC CADE, DORIS D. CADE, Defendants.
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
31, 2016, Eric Cade,  a self-represented litigant, filed notice
to remove an in rem foreclosure proceeding, case
number 24-O-13-003240, from the Circuit Court for Baltimore
City, Maryland. (ECF No. 1). On June 28, 2016, Plaintiff
Laura O’Sullivan, by her counsel, filed a Motion to
Remand this matter as improperly removed. (ECF No. 10). For
the reasons to follow, this Court will GRANT the Motion to
state foreclosure case involves real property known as 139
North Edgewood Street, Baltimore, Maryland 21229. Cade also
seems to name in this action substitute trustees under the
deed of trust secured against the real property. (ECF 1). The
foreclosure action was filed in the Circuit Court for
Baltimore City on August 26, 2013. See
http://casesearch.courts.state.md. us/ casesearch/
foreclosure sale was held on June 3, 2016, and resulted in
the sale of the property to the Noteholder, Christina Trust,
a division of Wilmington Savings Fund Society, FSB, as trusts
for Sunset Mortgage Loan Trust, Series 2014-1. (ECF No. 10,
11). Plaintiff states Cade has not filed any recent motions
in the Circuit Court for relief as to the Order to Docket
Suit, as permitted by Md. Rule 14-211 or 14-305, nor has that
Court entered any order staying the foreclosure sale. (ECF
the arguments presented in the notice of removal are
difficult to discern and sometime unintelligible, Cade, who
is a self-represented litigant, appears to assert the Circuit
Court has or had no authority to hear the foreclosure action.
He maintains generally that the “Circuit Court for
Baltimore City has limited jurisdiction to hear, prosecute,
or bring any case against him” under the Federal Rules
of Civil Procedure 4(j), 12(b)(1)-(6) and the Fourth, Fifth,
Ninth, Tenth, Eleventh, and Fourteenth Amendments of the
Constitution because he is “not subject to a Foreign
State.” (ECF No. 1 at 1). Cade also mentions the Fair
Debt Collections Practices Act, 15 U.S.C. §1692,
sovereign and state immunity, and the rights of Americans in
foreign states in the Notice of Removal to seemingly support
his contention the Circuit Court lacks authority over the
foreclosure. Cade maintains the state foreclosure action
“must be vacated for lack of in rem, in personam
jurisdiction, territorial and subject matter jurisdiction, as
well as for improper venue, as well as pursuant to the 11th
Amendment Foreign State Immunity.” (ECF 1 at 8).
threshold matter, Cade’s removal of the foreclosure
proceeding was untimely. A proceeding must typically be
removed within 30 days of the receipt of the initial pleading
by the defendant. 28 U.S.C. § 1446 (b). When a defendant
fails to timely remove a case, the right to remove is
forfeited. See McKinney v. Bd. of Trustees of Mayland
Cmty. Coll., 955 F.2d 924, 925 (4th Cir. 1992). Here,
removal occurred more than two years after the action
commenced and is untimely. Moreover, Cade does not assert
good cause for untimely removal.
removal were timely, Cade does not assert grounds for this
court to exercise jurisdiction over this case. Under 28 U.S.C
§ 1441(a), “a civil action brought in a State
court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the
defendants.” Federal district courts “have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States, ”
pursuant to 28 U.S.C. § 1331, as well those “where
the matter in controversy exceeds the sum or value of $75,
000, exclusive of interest and costs, and is between-(1)
citizens of different States, ” pursuant to 28 U.S.C.
§ 1332(a). The burden of demonstrating jurisdiction, and
the propriety of removal, rests with the removing party.
Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815 (4th
Cir. 2004). “[F]ederal courts are courts of limited
jurisdiction, [and] should construe removal statutes
narrowly, [with] any doubts ... resolved in favor of state
court jurisdiction.” Barbour v. Int'l,
Union, 640 F.3d 599, 617 (4th Cir. 2011) (en banc)
(abrogated in part other grounds). “[B]efore a federal
court can decide the merits of a claim, the claim must invoke
the jurisdiction of the court.” Miller v.
Brown, 462 F.3d 312, 316 (4th Cir. 2006).
removal jurisdiction raises significant federalism concerns,
[courts] must strictly construe removal jurisdiction.”
Mulcahey v. Columbia Organic Chems. Co., 29 F.3d
148, 151 (4th Cir. 1994) (citing Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)); see
also Cohn v. Charles, 857 F.Supp.2d 544, 547 (D. Md.
2012) (“Doubts about the propriety of removal are to be
resolved in favor of remanding the case to state
court.”). Cade, the party invoking removal
jurisdiction, bears the burden of showing removal is proper.
Mulcahey, 29 F.3d at 151 (“The burden of
establishing federal jurisdiction is placed upon the party
seeking removal.”). “If federal jurisdiction is
doubtful, a remand is necessary.” Id.
claim of federal question jurisdiction is to be resolved on
the basis of the allegations of the complaint itself.”
Burgess v. Charlottesville Sav. and Loan Assoc., 477
F.2d 40, 43 (4th Cir. 1973). Therefore, a complaint must
contain allegations affirmatively and distinctly establishing
federal grounds not in mere form, but in substance and not in
mere assertion, but in essence and effect. Id.
(citing Cuyahoga Co. v. Northern Ohio Co., 252 U.S.
388, 397 (1920)). “[T]he mere assertion in a pleading
that the case is one involving the construction or
application of the federal laws does not authorize the
District Court to entertain the suit.”
Burgess, 477 F.2d at 42 (citing Malone v.
Gardner, 62 F.2d 15, 18 (4th Cir. 1932)).
does not specify on what basis this Court has jurisdiction
over this case. (ECF No. 1). Further, Plaintiff asserts that
Cade did not raise constitutional or federal claims in the
state foreclosure proceeding, and even if he had pled these
alleged violations as affirmative defenses or counterclaims
in the state action, they fail to give rise to federal
question jurisdiction, because “‘the federal
question must be presented by plaintiff's complaint as it
stands at the time the petition for removal is filed...It is
insufficient that a federal question has been raised as a
matter of defense or as a counterclaim.’”
Herman v. Lincoln Nat'l Life Ins. Co., 842
F.Supp.2d 851, 853 (D. Md. 2012) (quoting Metro Ford
Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-
27 (5th Cir. 1998) (citing 14 C. Wright & A. Miller,
Federal Practice and Procedure § 3722, at 557)).
Therefore, this Court does not have federal question
jurisdiction. See 28 U.S.C. § 1331a.
Plaintiff maintains no diversity of citizenship exists
between the parties and “upon information and belief
all parties reside in Maryland.” (ECF No. 10).
Therefore, this Court does not have diversity of the
party’s jurisdiction. See 28 U.S.C. §
these reasons, this Court concludes there is no basis exists
for federal ...