1:18-cv-00555•Madhu Estates, LLC v. Tompson
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Madhu Estates, LLC v. Civil No. 18-cv-555-PB Judith Tompson REPORT AND RECOMMENDATION Defendant, Judith Tompson, removed this eviction proceeding from the New Hampshire Circuit Court, 10th Circuit, District Division, Salem (“Salem District Court”) to federal court. See Notice of Removal (Doc. No. 1). Tompson’s initial filings are before the court to determine whether this court has subject matter jurisdiction. See LR 4.3(d)(2); see also 28 U.S.C. § 1447(c). Also before the court is Tompson’s motion to continue electricity (Doc. No. 7), seeking a preliminary injunction ordering that electric service be maintained at the subject condominium unit during the eviction proceeding. That motion has been referred to the magistrate judge for a report and recommendation. In addition, Tompson’s motion to dismiss (Doc. No. 6), plaintiff Madhu Estates LLC’s “Motion to Dismiss,” seeking a remand (Doc. No. 10), are pending here. Background Tompson fell behind on mortgage loan payments and suffered a mortgage foreclosure on her condominium unit in Salem, New Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 1 of 11
2 Hampshire. Tompson continued to reside in the condominium unit after Fannie Mae acquired the property by foreclosure deed. Fannie Mae filed a landlord and tenant action in state court against Tompson to evict her. Fed. Nat’l Mortg. Ass’n v. Tompson, No. 473-2017-LT-11121 (N.H. Cir. Ct., 10th Cir., Dist. Div., Salem, filed Nov. 16, 2017) (“Fannie Mae I”). Tompson removed that action to federal court, see Fed. Nat’l Mortg. Ass’n v. Tompson, No. 17-cv-699-SM (D.N.H.) (“Fannie Mae II”). The court in Fannie Mae II remanded that case to Salem District Court for lack of subject matter jurisdiction. See Fannie Mae II, 2018 DNH 108, 2018 U.S. Dist. LEXIS 86086, at *10, 2018 WL 2426638, at *4 (D.N.H. May 21, 2018) (ECF No. 15).1 Fannie Mae held a public auction in March 2018, at which Madhu Estates LLC was the highest bidder. After the deed transfer, Fannie Mae filed a notice of voluntary non-suit in the remanded state case on June 5, 2018, and that state case was closed. See June 5, 2018 Vol. Nonsuit, Fannie Mae I. Madhu Estates LLC filed this eviction proceeding on June 11, 2018 in Salem District Court, to evict Tompson. See Madhu Estates LLC v. Tompson, No. 473-2018-LT-00059 (N.H. Cir. Ct., 10th Cir., Dist. Div., Salem, filed June 11, 2018). Tompson 1Tompson’s appeal in that case was docketed in the First Circuit on July 3, 2018. See Fed. Nat’l Mortg. Ass’n v. Tompson, No. 18-1619 (1st Cir., appeal filed July 3, 2018). Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 2 of 11
3 filed a notice of removal here on June 19, 2018, before she filed an answer asserting defenses and counterclaims. I. Subject Matter Jurisdiction A case may be removed to federal court if this court would have had original jurisdiction over the matter. 28 U.S.C. § 1441(a). This court has authority to consider, sua sponte, whether it has jurisdiction over a removed case. See York v. Day Transfer Co., 525 F. Supp. 2d 289, 295 (D.R.I. 2007); see also Am. Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256, 1258 (1st Cir. 1993) (court is obliged to address propriety of removal as threshold matter). In the context of disputes over removal jurisdiction, it is the removing defendant’s burden to show that removal was proper. See Fayard v. Northeast Vehicle Servs., LLC, 533 F.3d 42, 48 (1st Cir. 2008); see also Acosta–Ramírez v. Banco Popular de P.R., 712 F.3d 14, 20 (1st Cir. 2013). “Furthermore, the removal statute should be strictly construed, and any doubts about the propriety of removal should be resolved against the removal of an action.” Int’l Union of Operating Eng’rs, Local No. 68 Welfare Fund v. AstraZeneca PLC (In re Pharm. Indus. Average Wholesale Price Litig.), 431 F. Supp. 2d 109, 116 (D. Mass. 2006). Remand to the state courts is required if, at any time, it appears that Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 3 of 11
4 the district court lacks jurisdiction over the case. See 28 U.S.C. § 1447(c). A. Diversity Jurisdiction Tompson relies primarily on diversity of citizenship as the basis for invoking this court’s subject matter jurisdiction. The pertinent statute, 28 U.S.C. § 1332(a), requires complete diversity of citizenship, and an amount in controversy exceeding the jurisdictional amount of $75,000.00. 1. Citizenship Tompson is a New Hampshire resident. The plaintiff, Madhu Estates LLC, is a limited liability company, which is deemed to be a citizen of each state where its members reside. Pramco, LLC ex rel. CFSC Consortium, LLC v. San Juan Bay Marina, Inc., 435 F.3d 51, 54-55 (1st Cir. 2006). Gaddam Madhu, who manages Madhu Estates LLC, has a Massachusetts address. Nothing before the court suggests that there are any New Hampshire resident members of Madhu Estates LLC. 2. Amount in Controversy The amount-in-controversy requirement for diversity actions is $75,000.00. See 28 U.S.C. § 1332(a). In cases such as this, where the underlying state court pleading seeks only nonmonetary Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 4 of 11
5 relief (eviction of Tompson), and the court has reason to question the amount in controversy asserted in the notice of removal, the defendant bears the burden of producing evidence establishing the amount in controversy by a preponderance of the evidence. See id. § 1446(c)(2)(B); Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014); Sanders v. Luminescent Sys., Inc., No. 14-cv-188-PB, 2014 DNH 141, 2014 WL 2815810, at *1, 2014 U.S. Dist. LEXIS 85175, at *3-*4 (D.N.H. June 23, 2014) (“When the amount in controversy is disputed, courts require more than a bare allegation such as that included in defendants’ notice of removal.”). “In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation.” Hunt v. Wash. State Apple Adver, Comm’n, 432 U.S. 333, 347 (1977). Federal courts look to state law to determine the nature and extent of the right to be enforced in a diversity case, in considering the whether the amount-in-controversy has been satisfied. See Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 352–53 (1961). In the notice of removal, Tompson asserts that she seeks damages on counterclaims totaling $125,000.00, an amount she asserts is equivalent to the homestead exemption she claimed for the condominium unit under the Internal Revenue Code. In addition, she asserts counterclaims sounding in state tort law. Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 5 of 11
6 In the summary eviction proceeding, however, Madhu Estates LLC has not asserted any claim for unpaid rent. Under N.H. Rev. Stat. Ann. § 504:13, III, defenses or counterclaims reducing the amount of rent owed may be litigated “[i]f the landlord elects to make a claim for unpaid rent.” It is not clear, however, whether Tompson may litigate her counterclaims in a summary eviction case where no claim for unpaid rent is asserted. N.H. Rev. Stat. Ann. (“RSA”) § 540:13, III (“[i]f the landlord elects to make a claim for unpaid rent, the court shall consider any defense, claim, or counterclaim . . . which offsets or reduces the amount owed to the plaintiff”). To that extent, the damages sought on those counterclaims is not properly deemed to be the amount in controversy for purposes of removing that case. In the analogous eviction proceeding filed by Fannie Mae against Tompson in November 2017, Tompson also asserted a $125,000.00 counterclaim based on the federal homestead exemption as grounds for finding the amount in controversy to exceed $75,000.00. The Fannie Mae II court concluded that the counterclaim in that case could not be a basis for finding removal jurisdiction. See Fannie Mae II, 2018 WL 2426638, at *2, 2018 U.S. Dist. LEXIS 86086, at *5-*6. Noting that it would be problematic to base the amount in controversy on counterclaims like Tompson’s that had not been pleaded prior to the removal, id., 2018 WL 2426638, at *2 n.1, 2018 U.S. Dist. Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 6 of 11
7 LEXIS 86086, at *6 n.1, the Fannie Mae II court reasoned that the traditional rule, which does not take any counterclaims into account when determining the amount in controversy, was properly applied as Tompson’s counterclaim was not transactionally related to the possessory action in state court. Id., 2018 WL 2426638, at *2, 2018 U.S. Dist. LEXIS 86086, at *6. The facts here are substantially the same, and the same reasoning applies. Therefore, Tompson’s estimate of the value of her counterclaims does not provide a measure of the amount in controversy in this case. See Watch Hill Partners, Inc. v. Barthel, 338 F. Supp. 2d 306, 309 (D.R.I. 2004) (value of counterclaims cannot be used to establish jurisdictional amount in controversy). Tompson asserts, as an alternate measure of the amount in controversy, the sum of the rent she did not pay in June 2018 (which she asserts is $1,000.00) added to the amount Madhu Estates LLC paid to buy the condominium at a public auction ($74,025.00 plus recording and filing charges). Tompson appears to contend that in the eviction proceeding, she will be able to litigate whether there are defects in Madhu Estates LLC’s title in the property that void its claim of ownership, and, therefore, the value of the entire property, approximated by the auction price, may be deemed to be the amount in controversy. A mistake in Tompson’s reasoning, however, is that the Salem District Court landlord tenant case at issue is not a proceeding Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 7 of 11
8 in which a title dispute could be resolved. See Fed. Home Loan Mortg. Corp. v. Willette, 168 N.H. 512, 514, 131 A.3d 950, 952 (2016); Wells Fargo Bank v. Schultz, 164 N.H. 608, 611, 62 A.3d 893, 896 (2013) (“In a possessory action in the district division, ‘the defendant shall not offer evidence which may bring the title to the demanded premises in question.’” (quoting RSA § 540:16)). While there is some authority for the proposition that the market rent is the value of that possessory interest, neither the auction price, nor its fair market value, is properly deemed to be the amount in controversy in this summary eviction proceeding. See Wells Fargo Bank Nat’l Ass’n v. Gomez, No. 3:15-CV-0184-N-BF, 2015 WL 12763516, at *2, 2015 U.S. Dist. LEXIS 55426, at *4-*5 (N.D. Tex. Jan. 22, 2015) (N.D. Tex. Jan. 22, 2015), R&R adopted, No. 3:15-CV-0184-N-BF, 2015 U.S. Dist. LEXIS 54435, 2015 WL 12763517 (N.D. Tex. Apr. 27, 2015); Fed. Nat’l Mortg. Ass’n v. Gibson, No. SA:14-CV-712-XR, 2014 WL 4385989, at *1, 2014 U.S. Dist. LEXIS 123144, at *3-*4 (W.D. Tex. Sep. 3, 2014). Nothing here suggests that the value of the object of the eviction proceeding exceeds $75,000.00. Tompson has not shown that removal on the basis of diversity of citizenship is proper in this case. See In re Pharm. Indus., 431 F. Supp. 2d at 116 (any doubts about propriety of removal should be resolved against removal). Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 8 of 11
9 B. Federal Question Jurisdiction Tompson’s filings suggest that she may seek to invoke this court’s federal question jurisdiction under 28 U.S.C. § 1331. Under the well-pleaded complaint rule, however, the “‘plaintiff is master of his complaint,’” and “‘a case cannot be removed if the complaint’s allegations are premised only on local law.’” López-Muñoz v. Triple-S Salud, Inc., 754 F.3d 1, 4 (1st Cir. 2014) (citation omitted); see also Vaden v. Discover Bank, 556 U.S. 49, 54 (2009) (federal court jurisdiction “cannot be invoked on the basis of a defense or counterclaim”); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-93 (1987) (case cannot be removed to federal court on basis of federal defense). This case, filed initially in Salem District Court, is an eviction proceeding, arising under state law. There is no federal claim in the landlord tenant petition that could provide grounds for exercising federal question jurisdiction over this matter. See Fannie Mae II, 2018 WL 2426638, at *3, 2018 U.S. Dist. LEXIS 86086, at *6-*7. Accordingly, the district judge should remand this action for lack of jurisdiction, and deny as moot Madhu Estates LLC’s motion seeking a remand (Doc. No. 10). II. Tompson’s Motions (Doc. Nos. 6, 7) Tompson seeks injunctive relief in her motion to continue electricity (Doc. No. 7), and she seeks to dismiss the Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 9 of 11
10 underlying eviction proceeding in Document No. 6. “‘A [party] seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’” Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015) (citation omitted). Irreparable harm and the likelihood of success weigh most heavily in the analysis. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011). The burden of proof is on the movant. See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir. 2006). Because this action should be remanded, Tompson has not demonstrated, and cannot demonstrate, any likelihood that she would succeed on the merits of her claims in this action. Therefore, without expressing any opinion on the underlying merits of any claims, counterclaims, or defenses in the eviction proceeding, the district judge should deny the motion to continue electricity (Doc. No. 7), without prejudice to Tompson’s ability to seek such relief in the state court after remand.2 Similarly, this court should deny Tompson’s motion to 2The Salem District Court appears to have granted Tompson’s motion to continue electricity on the property. See Madhu Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 10 of 11
11 dismiss the underlying eviction proceeding (Doc. No. 6) without prejudice to her ability to seek such relief in the state court. Conclusion For the foregoing reasons, the district judge should remand this action for lack of subject matter jurisdiction, deny the pending motion for remand as moot (Doc. No. 10), and deny without prejudice to refiling in state court Tompson’s motions to dismiss and to continue electricity (Doc. Nos. 6, 7). Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Failure to file specific written objections to the Report and Recommendation within the specified time waives the right to appeal the district court’s order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). ______________________________ Andrea K. Johnstone United States Magistrate Judge August 7, 2018 cc: Judith Tompson, pro se Michael J. Scott, Esq. Estates LLC v. Tompson, No. 473-2018-LT-00059 (N.H. Cir. Ct., 10th Cir., Dist. Div., Salem July 12, 2018). This court expresses no opinion on whether that state court order should be revisited, upon remand. See generally 28 U.S.C. § 1446(d). Case 1:18-cv-00555-PB Document 12 Filed 08/07/18 Page 11 of 11
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