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Covel v. PNC Bank N.A.

United States District Court, N.D. Ohio, Eastern Division

January 10, 2020




         Before the Court is the motion to remand filed by plaintiffs Samar Covel and Jason Covel (“plaintiffs”). (Doc. No. 5 [“Mot.”].) Defendants PNC Bank N.A. and Cory Williams filed a response in opposition. (Doc. No. 6 [“Opp'n”].) No reply was filed. For the reasons set forth herein, the motion to remand is granted.

         I. BACKGROUND

         Plaintiffs filed their original action in the Summit County Court of Common Pleas on March 3, 2019, naming five defendants: PNC Bank, N.A. (“PNC”), Cory Williams (“Williams”) (together, “defendants”), United States Department of Housing and Urban Development (“HUD”), United States Department of the Treasury (“Treasury”), and NationalLink, LP (“NationalLink”). (Doc. No. 1, Notice of Removal [“Notice”] ¶¶ 1-2.)

         Plaintiffs asserted an alleged violation of the federal Truth in Lending Act (“TILA”), 15 U.S.C. § 1602, et seq., plus several state law claims. (Id. ¶ 12.)

         PNC, Williams, and NationalLink were eventually served and they filed their answers. (Id. ¶¶ 3-5.) HUD and Treasury never filed an answer or appeared and, based on the state court docket, may not have been properly served. (Id. ¶ 6.) On June 11, 2019, plaintiffs voluntarily dismissed NationalLink, and on August 18, 2019, they voluntarily dismissed HUD and Treasury. (Id. ¶¶ 7- 8.)

         Defendants assert that, “[p]rior to the voluntary dismissal of HUD and [Treasury], PNC and Williams were unable to obtain the consent of those [d]efendants as required by 28 U.S.C. § 1441(b)(2)(A) [sic] in order to remove the case because those entities had not yet entered an appearance and PNC was unable to communicate with those parties about whether they would consent to removal.” (Id. ¶ 11; see also ¶ 15 (“[i]n order for PNC or Williams to have removed the case, they were required to obtain the consent of all other [d]efendants[]”).) Defendants further assert that the notice of removal was timely filed “within thirty (30) days of the case becoming eligible for removal as a result of [p]laintiffs' voluntary dismissal of HUD and [Treasury].” (Id. ¶ 14; see also ¶ 16 (dismissal of HUD and Treasury “makes the case eligible for removal”).) Defendants claim that this Court has federal question jurisdiction because of the TILA claim raised by plaintiffs, in addition to supplemental jurisdiction over the various state law claims. (Id. ¶¶ 17- 18.)

         Plaintiffs have moved for remand, arguing that removal was not timely, that there is no diversity jurisdiction, and that the Court should not exercise supplemental jurisdiction. The Court need address only the first of these arguments, which is dispositive.


         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (“district courts may not exercise jurisdiction absent a statutory basis”). Further, “removal statutes are to be strictly construed, and ‘all doubts should be resolved against removal.'” Mays v. City of Flint, Mich., 871 F.3d 437, 442 (6th Cir. 2017) (quoting Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007) and citing Eastman v. Marine Mech. Corp., 438 F.3d 544, 550 (6th Cir. 2006)). “This is because removal jurisdiction encroaches on state jurisdiction, and the interests of comity and federalism require that federal jurisdiction be exercised only when it is clearly established.” Holston v. Carolina Freight Carriers Corp., No. 90-1358, 1991 WL 112809, at *3 (6th Cir. June 26, 1991).

         Under the general removal statute, “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 defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). Federal courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 (federal question jurisdiction). A case arising under this provision is removable without regard to the citizenship of the parties. Federal courts also have subject matter jurisdiction over “civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States[.]” 28 U.S.C. § 1332(a)(1) (diversity jurisdiction).

         “[W]hether a case . . . is removable or not . . . is to be determined by the allegations of the complaint or petition[.]” Great N. Ry. Co. v. Alexander, 246 U.S. 276, 281, 38 S.Ct. 237, 62 L.Ed. 713 (1918); see also Union Planters Nat'l Bank of Memphis v. CBS, Inc., 557 F.2d 84, 89 (6th Cir. 1977) (“As a general rule, removability is determined by the pleadings filed by the plaintiff.”). Here, plaintiffs' original complaint, which appears never to have been amended, alleged a violation of TILA-conferring federal question jurisdiction and rendering the case removable from its inception.

         When a case is removable, “[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons . . . to file the notice of removal.” 28 U.S.C. § 1446(b)(2)(B).[1] It is not entirely clear when PNC and Williams were served with the summons and complaint. The state court docket recorded service by certified mail on both of them on March 13, 2019. (Doc. No. 1-1 at 9.[2]) The notice of removal reveals no service date for PNC, but indicates that it filed an answer on April 16, 2019, suggesting that service may have occurred in March. (Notice ¶ 3.) The notice of removal claims that Williams was served on July 31, 2019. (Id. ¶ 5.) In any event, their joint removal filed on September 4, 2019 was outside any possible 30-day period following service.

         Defendants argue that the removal was nonetheless timely because, “[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A).[3] HUD and Treasury had not consented and, in defendants' view, that precluded removal-that ...

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