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Fisher v. Stanley

United States District Court, D. Maryland

October 11, 2016

JEFFREY B. FISHER, et al. Plaintiffs,
RHODA M. STANLEY, et al. Defendants.



         On October 5, 2016, pro se defendant Rhoda Stanley filed a Notice of Removal (ECF 1), seeking to remove to this Court foreclosure proceeding filed in the Circuit Court for Harford County, Maryland. That foreclosure case, Fisher, et al. v. Stanley, et al, . Case No. 12-C-13-003087, was initiated in State court on September 27, 2013. See ECF 1-3; ECF 6. A review of the state court docket shows that the substitute trustees, as plaintiffs, filed the foreclosure proceeding against August and Rhoda Stanley, in connection with a residential property located on Priestford Road in Churchville, Maryland.

         On or about January 7, 2015, a certification of the publication of the foreclosure sale was entered on the state court docket. And, on September 22, 2016, Branch Banking and Trust Company (“BB&T”), as Movant, filed a motion for judgment awarding possession, pursuant to Maryland Rules 2-311 and 14-102. See ECF 2. BB&T asserts that it bought the Stanleys' property on Priestford Road at a foreclosure sale held on January 6, 2015. Id. ¶ 1. Further, that sale was ratified by the Circuit Court for Harford County on February 19, 2015. Id. ¶ 2.

         The civil cover sheet completed by Ms. Stanley (ECF 1-1) indicates that Ms. Stanley relies on diversity jurisdiction under 28 U.S.C. § 1332 to support removal. However, the plaintiffs and defendants all appear to be domiciled in Maryland. Ms. Stanley also asserts that the cause of action is based on “civil rights, ” although she did not check the box for federal question jurisdiction under 28 U.S.C. § 1331.

         Because Ms. Stanley appears indigent, her motion for leave to proceed in forma pauperis (ECF 4) shall be granted. But, upon review of the materials and state court docket, I shall remand the case to the Circuit Court for Harford County.

         I. Discussion

         In the Notice of Removal, Ms. Stanley complains of a violation of her due process rights and her right to equal protection. In particular, she maintains that “Plaintiff . . . seeks to evict Defendant from the real property, ” without legal basis. ECF 1 at 3. Moreover, she claims that “plaintiff is not a bona fide purchaser. . . .” Id. In addition, she states, id.: “Plaintiff, and plaintiff's attorney, are not proceeding in the manner required by the Code of Civil Procedure, and particularly the rules in evidence . . . .” ECF 1 at 3. She is clearly unhappy that “Plaintiff is now moving for judgment. . . even while Defendant was formerly in negotiations with Plaintiff.” Id. She adds: “Plaintiff's counsel therefore has, in effect, used their knowledge of the law in attempting to prevent Defendant from fully and accurately presenting her case.” Id. at 4.

         Plaintiff ignores the long history of this foreclosure case. The Motion for Judgment Awarding Possession was filed in that case. See ECF 2.

Section 1441(a) of 28 U.S.C. provides:
Except as otherwise expressly provided by Act of Congress, any 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, to the district court of the United States for the district and division embracing the place where such action is pending.
Title 28 U.S.C. § 1447(c) provides:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

         Generally, a case must be removed within 30 days of the receipt of the initial pleading by the defendants. 28 U.S.C. § 1446(b). Here, removal occurred more than three years after the action was initiated in state court.[1]

         A civil action filed in state court may be removed to federal court if it is one over which the district court has original jurisdiction. 28 U.S.C. § 1441(a). The burden of demonstrating jurisdiction and propriety of removal rests with the removing party. Dixon v. Coburg Dairy, Inc.,369 F.3d 811, 815 (4th Cir. 2004); see also McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010); Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010). Thus, “[i]f a plaintiff files suit in state court and the defendant seeks to adjudicate the matter in federal court through removal, it is the defendant who carries the burden of alleging in his ...

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