Bank of New York Mellon v. King
| Bank of New York Mellon |
| Alton Jr. King |
| 3:2023cv30022 |
| February 24, 2023 |
| US District Court for the District of Massachusetts |
| Mark G Mastroianni |
| Negotiable Instrument |
| 28 U.S.C. ยง 1441 Notice of Removal |
| Both |
Docket Report
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| Filing 16 Copy re 15 Order on Motion for Leave to Proceed in forma pauperis mailed to Alton King Jr on 03/02/2023. (Zamorski, Michael) |
| Filing 15 Judge Mark G. Mastroianni: Electronic Order entered denying without prejudice #14 Defendant's Motion for Leave to Proceed in forma pauperis. Pursuant to Fed. R. App. Proc. 24(a), "a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court." The party "must attach an affidavit" to the motion that "states the issues that the party intends to present on appeal." Defendant has not filed such an explanation. Defendant may refile his IFP request, however, the court notes that the remand in this case was based on its untimeliness and Defendant's failure to identify a basis for subject matter jurisdiction, both grounds for remand pursuant to 28 U.S.C. s. 1447(c), and, therefore, "not reviewable on appeal or otherwise."Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 230 (2007) (describing 28 U.S.C. s. 1447(d) as precluding appellate review of "remands for lack of subject-matter jurisdiction and for defects in removal procedure); see also Perfect Puppy, Inc. v. City of East Providence, 807 F.3d 415, 419 (1st Cir. 2015) ("[S]ection 1447(d) definitely bars appellate review of remand orders based on lack of subject-matter jurisdiction."). (Zamorski, Michael) |
| Filing 14 MOTION for Leave to Proceed in forma pauperis by Alton Jr. King. (Figueroa, Tamara) |
| Filing 13 NOTICE OF APPEAL as to #12 Order of Remand to the State Court, 11 Order on Motion to Remand,,,,,,,,,,,,,,,, by Alton Jr. King NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at #http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at #http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at #http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 3/22/2023. (Figueroa, Tamara) |
| Filing 12 Judge Mark G. Mastroianni: ORDER entered. ORDER OF REMAND to the State Court.(Zamorski, Michael) |
| Filing 11 Judge Mark G. Mastroianni: Electronic Order granting #6 Plaintiff's Emergency Motion to Remand Matter to Western Housing Court and denying #9 Defendant's Motion for Extension of Time to Respond to the Emergency Motion.This case was originally filed as an action for summary process in the Massachusetts Western Housing Court on January 14, 2019. Judgment was entered against Defendant on July 5, 2019. Entry of judgment was followed by vigorous post-judgment motion practice, an appeal resolved in Plaintiff's favor by the Massachusetts Supreme Judicial Court on June 17, 2020, and more than two additional years of litigation. During that time, Defendant has retained possession of the property despite entry of final judgment in favor of Plaintiff. On December 6, 2022, Plaintiff obtained an Execution for Possession of the property central to this litigation and anticipates levy on the execution will occur on March 2, 2023 or March 3, 2023. The Execution will expire if not used by March 6, 2023.On February 24, 2023, Defendant removed the case to this court, asserting that this court has federal question jurisdiction over this case pursuant to the Foreign Agent Registration Act (FARA), 22 U.S.C. s. 611. Plaintiff filed an Emergency Motion to Remand on February 27, 2023, asserting that Defendant's removal was undertaken in bad faith in order to further delay Plaintiff's attempts to levy on the Housing Court's judgment for possession. Defendant filed a motion for extension of time to oppose that motion and the court heard from both parties during a remote hearing on March 1, 2023.Defendant, as the removing party, bears the burden of establishing that the removal was proper. As the court explained during the hearing, a notice of removal must demonstrate that there is a basis for subject matter jurisdiction and that the notice of removal was filed within the required time. Danca v. Priv. Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). It is well established that removal is only available "when the plaintiff's statement of his own cause of action shows that it is based upon federal law." Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). Generally, this means jurisdiction must be ascertainable "from the face of the state court complaint that triggered the removal." Danca, 185 F.3d at 4. Additionally, pursuant to 28 U.S.C. s. 1446(b), a "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." The removal statute, including its 30-day limitation, must be narrowly construed by this court. Danca, 185 F.3d at 4. Defendant filed his notice of removal years after being served and cited the FARA as providing a jurisdictional basis for removal. "Broadly speaking,... FARA requires agents of foreign principals to file registration statements with the federal government." Afrasiabi v. United Press Int'l, 561 F. Supp. 3d 1, 3 n. 1 (D. Mass. 2021). The FARA requirements are enforced by the Attorney General and do not, on their face, provide a private right of action. 22 U.S.C. s. 618.During the hearing, the court questioned Defendant about the untimeliness of the notice of removal and his assertion that a FARA violation provides this court with subject matter jurisdiction. Defendant indicated he was not aware there was a time limit for removing a case to federal court. He also did not offer a legal rationale as to how a FARA violation would provide this court with subject matter jurisdiction over a state summary process action. For these reasons and as the court stated at the conclusion of the hearing, the case is remanded to state court. Citibank (S. Dakota), N.A. v. Jamil, 841 F. Supp. 2d 453, 456 (D. Mass. 2011) (remanding case to state court because notice of removal was untimely and complaint alleged only state law claims and federal counterclaims could not provide a basis for removal). (Zamorski, Michael) |
| Filing 10 MEMORANDUM in Support re #9 MOTION for Extension of Time to Respond to the Emergency Motion by Alton Jr. King. (Attachments: #1 Exhibit, #2 Exhibit) (Figueroa, Tamara) |
| Filing 9 MOTION for Extension of Time to Respond to the Emergency Motion filed by Carl Fumarola by Alton Jr. King. (Figueroa, Tamara) |
| Filing 8 ELECTRONIC NOTICE Setting Hearing on Motion #6 Emergency MOTION to Remand Matter to Western Housing Court. This hearing will be conducted by telephone conference. The clerk's office will provide call-in information for the hearing. Motion Hearing set for 3/1/2023 at 1:30 PM in Remote Proceeding: Springfield before Judge Mark G. Mastroianni. (Healy, Bethaney) |
| Filing 7 STATE COURT Docket sheet, complete record to be filed. (Zamorski, Michael) Modified on 2/27/2023 (Healy, Bethaney). |
| Filing 6 Emergency MOTION to Remand Matter to Western Housing Court by Bank of New York Mellon. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Fumarola, Carl) Modified on 2/27/2023 (Healy, Bethaney). |
| Filing 5 NOTICE of Appearance by Carl E. Fumarola on behalf of Bank of New York Mellon (Fumarola, Carl) Modified on 2/27/2023 (Healy, Bethaney). |
| Filing 4 Remark: Certified copy of Notice of Removal mailed to Defendant Alton King, 2/27/2023. (Zamorski, Michael) |
| Filing 3 Filing fee/payment: $ 402, receipt number 300000132 for #1 Notice of Removal (Zamorski, Michael) |
| Filing 2 ELECTRONIC NOTICE of Case Assignment. Judge Mark G. Mastroianni assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Finn, Mary) |
| Filing 1 NOTICE OF REMOVAL by Alton Jr. King from Massachusetts Superior Court, Western Division Housing Court Dept case number 19H-79SP-000190. (Attachments: #1 Civil Cover Sheet, #2 Category Form)(Figueroa, Tamara) |
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| Plaintiff: Bank of New York Mellon | |
| Represented By: | Carl E. Fumarola |
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| Defendant: Alton Jr. King | |
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