Opinion
Civ. No. 18-13625 (KM)(MAH)
07-03-2019
MTAG CUST ALTERNA FUNDING II, LLC, Plaintiff, v. PAMELA RUSS FERGUSON, et al., Defendants.
ORDER
MCNULTY , District Judge
THIS MATTER having come before the court on the plaintiff's motion (DE 7) to remand this removed case; and
IT APPEARING that the defendant did not file an opposition to the motion to remand; and
IT APPEARING that the Hon. Michael A. Hammer, U.S. Magistrate Judge, to whom the motion was referred, has nevertheless carefully analyzed the case and filed a Report and Recommendation ("R&R") that the motion be granted (DE 9); and
IT APPEARING that the plaintiff has filed what is deemed an "objection" to the R&R, see Fed. R. Civ. P. 72(b); L. Civ. R. 72.1c(2), which contains no facts or arguments, but merely states that the plaintiff will "rely on the all affidavits filed in the Forceclosure Action. All supporting documents";
IT APPEARING that the underlying action is a state-law mortgage foreclosure, and that therefore there is no basis for federal question jurisdiction, see 28 U.S.C. § 1331; and
THE COURT having reviewed de novo the R&R, and found itself in complete agreement with the grounds expressed therein, specifically the following:
(a) Removal was procedurally defective, in that 28 U.S.C. § 1446(b)(1) requires that a notice of removal be filed within 30 days after service of the relevant complaint or pleading. This state court foreclosure complaint was filed on April 17, 2017, but the notice of removal was not filed until nearly 17 months later, on September 5, 2018. Indeed, that was some seven months after the state court had entered a final judgment of foreclosure.
(b) Removal was based on diversity of citizenship between the plaintiff (a citizen of Louisiana) and defendant Ferguson (a citizen of New Jersey). Although complete diversity is required and the removing party has the burden to demonstrate jurisdiction, the citizenship of the remaining defendants is nowhere stated.
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806) (complete-diversity rule); Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 20014) (removing party has burden).
IT IS THEREFORE this 3d day of July, 2019,
ORDERED that the Report and Recommendation (DE 9) is AFFIRMED pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b)(3); and is further
ORDERED that the motion to remand (DE 7) is GRANTED; and it is further
ORDERED that the case be REMANDED to the Superior Court of New Jersey, Chancery Division, Essex County.
The Clerk shall terminate this civil action and close the file.
/s/ _________
KEVIN MCNULTY, U.S.D.J.