United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE
case was opened upon receipt of pleadings entitled
"Notice of Removal of State Court Proceeding to U.S.
District Court with Constitutional Challenge" filed by
self-represented Plaintiff Rigoberto Ventura on October 31.
2017. HCF No. 1. Ventura is the defendant in a state
foreclosure action that was tiled in the Circuit Court for
Montgomery County. Maryland. See Rosenberg, et at. v.
Ventura, et al., No. 435983V (Mont. Co. Cir. Ct 2017)
(hereinafter. "Foreclosure Action"). Ventura seeks a
stay of those proceedings and asserts that removal of the
case is appropriate because it satisfies both diversity and
federal question jurisdiction prerequisites. State-court
plaintiffs Diane S. Rosenberg, et a!., docketed as
the Defendants in this action, tiled a Motion to Remand on
December 15. 2017. HCF No. 2. No. hearing is necessary. Loc.
R. 105.6 (D. Md. 2016). For the following reasons, the case
is remanded to the Circuit Court for Montgomery County.
of a case Hied in state court is governed by 28 U.S.C. §
1441. which provides:
The notice of removal of a civil action or proceeding shall
be filed within thirty days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based, or within thirty
days after the service of summons upon the defendant if such
initial pleading has then been tiled in court and is not
required to be served on the defendant, whichever period is
28 U.S.C.A. § 1446(b).
of the state court "s electronic docket indicates that
Ventura was served with the complaint for foreclosure
proceedings on September 1, 2017. See Foreclosure
Action. Docket No. 10 (Affidavit of Service as to Rigoberto
Ventura). As indicated. Ventura tiled his notice of removal
pleadings in this Court on October 3 1. 2017. sixty days
after he was served with the foreclosure complaint.
Therefore. Ventura's notice of removal is
the removal notice was timely, the underlying case is not one
subject to removal. Federal courts are courts of limited
jurisdiction and "may not exercise jurisdiction absent a
statutory basis." Exxon Mobil Corp. v. Allaputtuh
Servs., Inc., 545 U.S. 546. 552 (2005). Under the
"well-pleaded complaint" rule, the facts showing
the existence of subject matter jurisdiction "must be
affirmatively alleged in the complaint." Pinkley.
Inc. v. City of Frederick. 191 F.3d 394. 399 (4th Cir.
1999) (citing McNuti v. Gcn'l Motors Acceptance
Corp., 298 U.S. 178 (1936)). "A court is to
presume, therefore, that a case lies outside its
limited jurisdiction unless and until jurisdiction has been
shown to be proper." United States v. Poole.
531 F.3d 263. 274 (4th Cir. 2008) (citing Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375. 377 (1994))
(emphasis in original). Moreover, the "burden of
establishing subject matter jurisdiction is on . . . the
party asserting jurisdiction." Robb Evans &
Assocs., LLC v. Holibaugh, 609 F.3d 359. 362 (4th Cir.
2010). "Removal statutes .. . must be strictly
construed, inasmuch as the removal of cases from state to
federal court raises significant federalism concerns."
Barbour v. Int'l Union. 640
F.3d 599. 605 (4th Cir. 2011): see also Dixon v. Coberg
Dairy. Inc., 369 F.3d 811. 816 (4th Cir. 2004) (doubts
regarding propriety of removal to be resolved in favor of
remanding case to stale court).
Ventura argues that subject matter jurisdiction is proper
based on both diversity jurisdiction under 28 U.S.C. §
1332 and federal question jurisdiction under 28 U.S.C. §
1331, neither apply. Diversity jurisdiction does not exists
in this case because all parties involved are Maryland
residents. See 28 U.S.C. § 1332(a)(1)
(diversity jurisdiction applies "where (he matter in
controversy exceeds the sum or value of $75, 000. exclusive
of interest and costs, and is between .. . citizens of
different States."). Ventura's argument that the
"true real party in interest" is a German bank is
without merit. See ECF No. 1 at 14. "From the
beginning of the diversity jurisdiction, the rule in actions
commenced by plaintiffs in federal court has been that the
citizenship of the parties at the time of commencement of the
action determines whether the requisite diversity
exists." Rowland v. Patterson. 882 F.2d 97. 98
(4th Cir. 1989). Because Ventura does not dispute that the
state-court plaintiffs are Maryland residents, federal
diversity jurisdiction would not be established even if the
purported German bank were added as a party.
is also no basis for federal question jurisdiction. While
Ventura cites Federal Rule of Civil Procedure 5.1 and states
he is challenging the constitutionality of Maryland's
foreclosure procedures, the argument is a counter-claim he
may raise in the context of the Foreclosure Action and does
not give rise to federal question jurisdiction for purposes
of removal. A defense or counter-claim against
an otherwise purely state law claim, like foreclosure, that
relies on a constitutional challenge of the underlying law
does not convert the action into one implicating the
Court's federal question jurisdiction. See Holmes
Group, Inc. v. Vornado Air Circulation Sys., Inc., 535
U.S. 826. 831 (2002); see also Palisades Collections LLC
v. Shorts. 552 F.3d 327. 332 (4th Cm 2008)
(citing Shamrock Oil & Gas Corp. v. Sheets. 313
U.S. 100. 107-09 (1941) (the term "defendant" in 28
U.S.C. § 1441 does not include counter-defendants or
third-party defendants)). Accordingly, the Court does not
have subject matter jurisdiction over the Foreclosure Action.
foregoing reasons. Defendants' Motion to Remand. ECF No.
2, is granted, and the case will be remanded to the Circuit
Court for Montgomery County. A separate Order follows.