United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION
A. BAKER UNITED STATES MAGISTRATE JUDGE
Jacqueline Morgan filed a Complaint in the Circuit Court of
Montgomery County, Alabama, on October 18, 2017. (Doc. 1-1).
The Complaint sought a temporary restraining order or, in the
alternative, a preliminary injunction, preventing a home
mortgage foreclosure by Defendant Well Fargo Bank, N.A.
(“Well Fargo”) (Doc. 1-1 at 5). On November 16,
2017, Wells Fargo removed this matter from the Circuit Court
of Montgomery County, Alabama. (Doc. 1). This matter comes
before the Court on Plaintiff's Motion to Remand. (Doc.
11). This matter has been fully briefed and taken under
Fargo removed the action to this Court pursuant to 28 U.S.C.
§ 1446(a), on the basis that the “Complaint here
asserts claims under two federal statutes - RESPA and the
FDCPA - and this Court will have to address whether Wells
Fargo is liable under those federal statutes.” (Doc. 1
at 3). “Courts have an independent obligation to
determine whether subject-matter jurisdiction exists, even
when no party challenges it.” Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010). Because the Court found
reason to question the existence of its jurisdiction, the
Court issued an order to Wells Fargo to show cause why this
case should not be remanded as improvidently removed. (Doc.
13). Federal courts are courts of limited jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994); see also Burns v. Windsor Ins. Co.,
31 F.3d 1092, 1095 (11th Cir. 1994). A federal district court
is “‘empowered to hear only those cases within
the judicial power of the United States as defined by Article
III of the Constitution, ' and which have been entrusted
to them by a jurisdictional grant authorized by
Congress.” Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting
Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.
1994)). Therefore, a federal court is obligated to inquire
into subject matter jurisdiction “at the earliest
possible stage in the proceedings.” Id. at
410. “It is to be presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.”
Kokkonen, 511 U.S. at 377. Moreover, “[c]ourts
have an independent obligation to determine whether
subject-matter jurisdiction exists, even when no party
challenges it.” Hertz Corp. v. Friend, 559
U.S. 77, 94 (2010).
court removal is governed by 28 U.S.C. § 1441(a), which
provides in pertinent part that “[e]xcept 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.” Removal statutes
are to be strictly construed against removal. Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941);
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994) (“[R]emoval statutes are construed narrowly;
when the parties dispute jurisdiction, uncertainties are
resolved in favor of remand.”). The removing party has
the burden of proving that federal jurisdiction exists by a
preponderance of the evidence, and the removing party must
present facts establishing its right to remove. Williams
v. Best Buy Company, Inc., 269 F.3d 1316, 1319 (11th
Cir. 2001). When the defendant fails to do so, the case must
be remanded. Williams, 269 F.3d at 1321.
defendant desiring to remove a civil action must file a
notice of removal, together with all process, pleadings, and
orders served upon the defendant in the appropriate United
States District Court. 28 U.S.C. § 1446(a). The federal
removal statute sets forth the proper procedure for removal
of state actions to federal court and provides in relevant
(1) 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 filed in court and is not
required to be served on the defendant, whichever period is
U.S.C. § 1446(b).
Eleventh Circuit has clarified the requirements of this
statutory provision, explaining that “[u]nder the first
paragraph of § 1446(b), a case may be removed on the
face of the complaint if the plaintiff has alleged facts
sufficient to establish the jurisdictional
requirements.” Lowery v. Ala. Power Co., 483
F.3d 1184, 1215 n. 63 (11th Cir. 2007). The court continued:
Under the second paragraph, a case becomes removable when
three conditions are present: there must be (1) an amended
pleading, motion, order or other paper, which (2) the
defendant must have received from the plaintiff (or from the
court, if the document is an order), and from which (3) the
defendant can first ascertain that federal jurisdiction
Id. (citations and quotation marks omitted).
According to the Lowery court, “the documents
received by the defendant must contain an unambiguous
statement that clearly establishes federal
jurisdiction.” Id. (citations omitted).
initiated this lawsuit by the filing of a Complaint against
Wells Fargo in the Circuit Court of Montgomery County,
Alabama, in which Plaintiff alleged that she “entered
into a residential Mortgage with Wells Fargo” and
“diligently made mortgage payments on her home mortgage
until financial difficulties after financial loss and illness
hindered her from doing so.” (Doc. 1-1 at ¶¶
2-3). Plaintiff alleged that she “made good faith
efforts to pay the mortgage and Wells Fargo ultimately began
rejecting payments.” Id. at ¶ 5.
“Wells Fargo failed to act in good faith in assisting
the petitioner with Mortgage Assistance as mandated by
Federal laws, regulations and directives.” Id.
at ¶ 12. Plaintiff alleged that the notice of
foreclosure was deficient, that “Wells Fargo has
breached its duty of good faith and fair dealing, ” and
that Wells Fargo has not provided proof that it is authorized
to service the subject mortgage pursuant to the Fair Debt
Collection Practices Act (“FDCPA”). Id.
at ¶¶ 16, 19, 23, 24. Based on these allegations,
Plaintiff sought temporary and permanent restraining orders
from the state court “that will remain in place until
the modification and or pending litigation that may then
exist in this matter is resolved.” Id. at 5.
December 16, 2017, Plaintiff moved this Court to remand the
matter to state court “because Defendants fail to prove
that this case arises under the Constitution, laws, or
treatise of the United States.” (Doc. 11 at ¶ 4).
Wells Fargo responded, arguing that “federal questions
appear on the face of Morgan's Complaint for injunctive
relief, which asserts two claims arising under federal law: a
claim that Wells Fargo failed to properly offer or review her
for modification assistance in violation of the Real Estate
Settlement Procedures Act, and a claim that Wells Fargo
failed to respond to a debt validation letter send under the
Fair Debt Collection Practices Act. (See Compl. ¶¶
8, 9, 12, 15.)” (Doc. 14 at 2).
The test ordinarily applied for determining whether a claim
arises under federal law is whether a federal question
appears on the face of the plaintiff's well-pleaded
complaint. Louisville & Nashville R.R. v.
Mottley,211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126
(1908). “As a general rule, a case arises under federal
law only if it is federal law that creates the cause of
action.” Diaz v. Sheppard,85 F.3d 1502, 1505
(11th Cir.1996) (citing Franc ...