Wilmington Savings Fund Society, FSB et al v. Randolph et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Wilmington Savings Society, FSB
v. 	Case No. 21-cv-590-JL
Qiayra Randolph, Selena Randolph,
and Xzavier Randolph
REPORT AND RECOMMENDATION
The defendants, proceeding pro se and in forma pauperis,
removed this eviction proceeding from the New Hampshire Circuit
Court, 7th Circuit, District Division, Rochester (“Rochester
District Court”). 	Before the court for preliminary review is
the defendants’ Notice of Removal. 	(Doc. No. 1). 	See
LR4.3(d)(2); 28 U.S.C. § 1447(c).
Subject Matter Jurisdiction
A removed case must be remanded to state court if, at any
time, it appears that the district court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c). 	As relevant here, subject
matter jurisdiction can arise in two ways. 	Federal courts have
federal question jurisdiction when an action arises “under the
Constitution, laws, or treaties of the United States.” 	28
U.S.C. § 1331. 	Federal courts have diversity jurisdiction under
28 U.S.C. § 1332(a) when the parties are citizens of different
states and “the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs.” 	§ 1332(a). 	In
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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—Ramirez 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).
Discussion
Although their Notice of Removal is often difficult to
follow and laden with largely irrelevant legal jargon, the
defendants assert that there is both federal question and
diversity jurisdiction. 	Notice of Removal (Doc. No. 1) ¶ 1.
The court therefore addresses both potential avenues of subject
matter jurisdiction.
A. Diversity Jurisdiction
Federal courts have diversity jurisdiction when the amount
in controversy exceeds $75,000 and the action is between
“citizens of different states.” 	28 U.S.C. § 1332(a). 	Here,
however, there appears to be no amount in controversy. 	The
state court Writ served upon the defendants makes clear that the
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plaintiff seeks only possession of the property, but seeks no
monetary damages, such as unpaid rent. 	Writ (Doc. No. 1-1) at
1. 	In support of removal, the defendants assert a litany of
monetary damages in a list of counterclaims, see Notice of
Removal (Doc. No. 1) at 6. 	But judges in this district,
including the undersigned, have found in nearly identical
circumstances that such counterclaims cannot be considered when
determining the amount in controversy for purposes of diversity
jurisdiction. 	See Madhu Estates, LLC v. Tompson, No. 18-cv-555-
PB, 2018 WL 3997116, at *2-*3 (D.N.H. Aug. 7. 2018), R&R
approved, 2018 WL 4921540 (D.N.H. Sept. 27, 2018); see also,
Fed. Nat'l Mortg. Ass'n v. Tompson, No. 17-cv-699-SM, 2018 WL
2426638, at *2-*4 (D.N.H. May 21, 2018) (and cases cited
therein).
Accordingly, the court finds that the defendants have
failed to establish diversity jurisdiction.
B. 	Federal Question Jurisdiction
The defendants tacitly acknowledge that the state eviction
proceeding is based on state law. 	As best as the court can
determine from the Notice of Removal, the defendants claim that
they have several defenses to eviction that implicate federal
statutory or constitutional law. 	See, e.g., Notice of Removal
(Doc. No. 1) at 2 (citing federal lending and housing agencies
and statutes applicable to mortgages); id. at 30 (referring to
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landlord-tenant proceedings as violative of substantive due
process).
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 Rochester District Court, is
an eviction proceeding arising entirely under New Hampshire law.
There is no federal claim in the landlord-tenant action that
could provide grounds for exercising federal question
jurisdiction over this matter. 	See Tompson, 2018 WL 2426638, at
*3. 	Nor have the defendants indicated that resolution of
plaintiff's landlord-tenant claim would require the court to
address an “embedded question of federal law that is both
substantial and disputed.” 	R.I. Fishermen's All., Inc. v. R.I.
Dep't Of Envtl. Mgmt., 585 F.3d 42, 48 (1st Cir. 2009).
Accordingly, the court finds that the defendants have failed to
establish federal question jurisdiction.
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Conclusion
For the foregoing reasons, the district judge should remand
this action to the Rochester District Court because this court
lacks subject matter jurisdiction over the plaintiff’s claims.
In addition, the district judge should deny defendants’ demand
for jury trial (Doc. No. 3) and plaintiff’s motion to remand
(Doc. No. 4) as moot. 	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 16, 2021
cc: 	All parties and counsel of record
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