United States District Court, E.D. Pennsylvania
defendants in this case seek to remove an ejectment action to
this Court. For the following reasons, the Court will remand
this case to the Montgomery County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
August 22, 2016, Wells Fargo Bank N.A. as trustee for Option
One Mortgage Loan Trust 2003-3, Asset-Backed Certificates,
Series 2003-3, filed an ejectment action against individuals
living at 1019 Southampton Ave. Wyndmoor, Pennsylvania. A
deed attached to the complaint reflects that Wells Fargo, as
trustee, is the owner of the property. At the time this case
was removed on August 28, 2017, the Dauphin Family Trust,
Samuel Dauphin, Marlene Marie Dauphin, Mike John, a John Doe
defendant and other unknown occupants/tenants were listed as
defendants on the state court docket. Samuel Dauphin, Marlene
Marie Dauphin, and Mike John filed the notice of removal on
their own behalf and "as trustee[s] ad litem" for
the Dauphin Family Trust Association. They seek to remove
this case on the basis of the court's diversity
jurisdiction, see 28 U.S.C. §§ 1332, 1441.
The defendants did not pay the $350 filing fee and $50
administrative fee, but Mr. Dauphin filed a motion for leave
to proceed in forma pauperis.
Fargo filed a motion to remand and for costs and expenses,
including counsel fees, incurred as a result of the removal.
Wells Fargo alleges that removal is inappropriate for several
reasons. First, Wells Fargo alleges the defendants may not
remove this action to federal court based on the Court's
diversity jurisdiction because they are citizens of
Pennsylvania. See 28 U.S.C. § 1441(b)(2).
Second, Wells Fargo alleges that the complaint was not
removed in a timely fashion. Third, Wells Fargo alleges that
the notice of removal fails to adequately establish that the
amount in controversy in this case exceeds $75, 000.
Samuel Dauphin and Marlene Dauphin filed an opposition in
which they argue that Wells Fargo lacks standing to move for
remand "as they were substituted by 'Option One
Mortgage Loans' or somesuch, " and that the real
party in interest, Option One Mortgage, has waived its right
to object to the removal. (Opp'n at 1.) They also challenge
the underlying ejectment action on its merits and question
whether they will receive justice in the state courts.
Defendants allege that the "one year bar is wholly
inapplicable as the case was always
removable from the beginning."
(Id. at 4.) Regarding diversity, they allege that
Wells Fargo is a citizen of California or South Dakota and
note that the family trust association is a resident of
Maryland in addition to Pennsylvania. Defendants do not
dispute the fact that they are citizens of Pennsylvania, but
note that "addresses and appearance are merely
formatting; anyone can reside anywhere they like . . .
." (Id.) Nevertheless, they refer to the 1019
Southampton Ave. Wyndmoor, Pennsylvania as their "home
of many years." (Id. at 3.)
bringing a lawsuit in federal court, whether by original
process or removal, is obligated to either pay the applicable
fees or seek leave to proceed in forma pauperis. See
28 U.S.C. §§ 1914, 1915. The Dauphin Family Trust
Association may not proceed in forma pauperis in
this case because "only a natural person may qualify for
treatment in forma pauperis under § 1915."
Rowland v. California Men's Colony, Unit II Men's
Advisory Council, 506 U.S. 194, 196 (1993). Although the
individual defendants may proceed in forma pauperis
and represent themselves, each individual defendant is
required to file his or her own motion to proceed in
forma pauperis. However, only Samuel Dauphin has filed a
motion for in forma pauperis status even though
Marlene Marie Dauphin and Mike John all signed the notice of
removal. Nevertheless, as it is apparent that Mr. Dauphin is
entitled to in forma pauperis status, the Court will
grant him leave to proceed in forma pauperis and
direct the Clerk of Court to file the notice of removal.
Removal is Improper
is required here. "As a general matter, defendants may
remove to the appropriate federal district court 'any
civil action brought in a State court of which the district
courts of the United States have original
jurisdiction.'" City of Chicago v. Int'l
Coll. of Surgeons, 522 U.S. 156, 163 (1997) (quoting 28
U.S.C. § 1441(a)). The defendants allege that diversity
jurisdiction exists pursuant to 28 U.S.C. § 1332(a).
Section 1332(a) provides for federal jurisdiction when
parties are citizens of different states and the amount in
controversy exceeds $75, 000. However, "[a] civil action
otherwise removable solely on the basis of the jurisdiction
under section 1332(a). . . may not be removed if any of the
parties in interest properly joined and served as defendants
is a citizen of the State in which such action is
brought." 28 U.S.C. § 1441(b)(2). It is apparent
from the notice of removal and the parties' filings that
the individual defendants are citizens of Pennsylvania.
Indeed, defendants' opposition describes the 1019
Southampton Ave. address in Wyndmoor, Pennsylvania as their
"home of many years." (Opp'n at 3.)
Accordingly, remand is required regardless of the citizenship
of the other parties.
The Court Declines to Require Payment of Costs and
Court will deny Wells Fargo's request for costs and fees
associated with the removal. "An order remanding [a]
case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of
the removal." 28 U.S.C. § 1447(c). "Absent
unusual circumstances, courts may award attorney's fees
under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal."
Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). "Conversely, when an objectively reasonable
basis exists, fees should be denied." Id.
However, district courts retain discretion in determining
whether to award fees in a given case. Id.
understandable how the defendants could have believed
diversity of citizenship provided a basis for jurisdiction in
light of their pro se status, even though they apparently
neglected to review other parts of the removal statute that
precluded removal here. The Court is sympathetic to Wells
Fargo's concerns about delay in this case. However, in
light of the defendants' pro se status, the Court is not
inclined to award costs or fees. See Oak Knoll Vill.
Condo. Owners' Ass'n v. Jaye, No. 15-CV-5303 PGS
TJB, 2015 WL 4603715, at *2 (D.N.J. July 30, 2015) (denying
request for fees even where removal was "improper"
because plaintiff was "acting pro se, and the
court generally grants pro se litigants more
latitude than it would an attorney admitted to practice
before this court"); Fed. Nat. Mortg. Ass'n v.
Allen, No. 2:13-CV-483, 2013 WL 5146201, at *6 (W.D. Pa.
Sept. 13, 2013) ("Although it appears that Allen lacked
an objectively reasonable basis for removing this action to
federal court, she is proceeding pro se, and FNMA has not
provided any argument or supporting documentation to show
that Allen was aware of this standard."). If the
defendants should again attempt removal, they are now on
notice that removal is improper and that fees may be awarded
accordingly. See Lott v. Duffy,579 Fed.Appx. 87, 90
(3d Cir. 2014) (per curiam) ("Duffy's second Notice
of Removal was plainly unreasonable given the District
Court's disposition of his first Notice of
Removal."); HSBC Bank USA, N.A. v. Ruffolo, No.