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Reverse Mortgage Solutions, Inc. v. Kennedy

United States District Court, E.D. Pennsylvania

May 4, 2018

REVERSE MORTGAGE SOLUTIONS, INC., Plaintiff,
v.
ALVIANETTE GIBSON KENNEDY, Known Heir of Lillian R. Gibson, JOCELYN GIBSON, Known Heir of Lillian R. Gibson, CHARLES GIBSON, Known Heir of Lillian R. Gibson, KEVIN GIBSON, Known Heir of Lillian R. Gibson, DAVID GIBSON, Known Heir of Lillian R. Gibson, and UNKNOWN HEIRS, SUCCESSORS, ASSIGNS AND ALL PERSONS, FIRMS OR ASSOCIATIONS CLAIMING RIGHT, TITLE OR INTEREST FROM OR UNDER LILLIAN R. GIBSON, Defendants.

          MEMORANDUM

          ROBERT F. KELLY, SR. J.

         Plaintiff Reverse Mortgage Solutions (“Reverse Mortgage Solutions”) filed a mortgage foreclosure action against Defendants in the Pennsylvania Court of Common Pleas of Montgomery County. After the Defendants served a subpoena on Michael G. Gonzales (“Gonzales”), an employee of the United States Postal Service (“the Postal Service”) and Postmaster of the Willow Grove, Pennsylvania Post Office, that purported to compel his appearance and testify at a state court hearing, the United States of America (the “Government”) removed the action to this Court pursuant to 28 U.S.C. § 1442(a).

         Presently before the Court is the Government's Motion to Quash and Remand, Plaintiff's Motion to Remand and Objection to Removal, and the Government's Memorandum in Opposition to Plaintiff's Objection to Removal and Response to Plaintiff's Motion to Remand. Defendants have not filed any briefs in response to the Government or Plaintiff's Motions. For the reasons noted below, the Government's Motion to Quash and Remand is granted, and Plaintiff's Motion to Remand and Objection to Removal is granted in part and denied in part.

         I. BACKGROUND

         Reverse Mortgage Solutions filed a state court action in mortgage foreclosure against Defendants in the Court of Common Pleas of Montgomery County. (Pl.'s Mot. Remand ¶ 4.) The Government is not a party to the action. Subsequent to Defendants' responsive pleading, Reverse Mortgage Solutions filed a motion for summary judgment, which the state court granted on August 17, 2017. (Id. ¶ 5.) Reverse Mortgage Solutions then filed a Writ of Execution, resulting in a sheriff sale scheduled for January 31, 2018. (Id. ¶ 6.) On November 1, 2017, Defendant Jocelyn Gibson (“Defendant Gibson”) filed a “Petition for Leave to File Appeal Nunc Pro Tunc, Vacate Judgement, and Stay Execution” (the “Petition”). (Id. ¶ 7.) The sheriff sale was postponed until Defendant Gibson's Petition was resolved. (Id.)

         The state court's order granting summary judgment to Reverse Mortgage Solutions stated that Defendants failed to respond to the motion for summary judgment and thus failed to make a legal defense to Reverse Mortgage Solutions' claim. (Doc. No. 4-50.) In her Petition, Defendant Gibson contended that she could not file a response to the motion for summary judgment because she never received a copy of it. (Doc. No. 4-57 ¶ 8.) She stated she has had difficulty receiving mail at the subject property and has made several complaints to the Postal Service about it. (Id. ¶ 15.) As “objective evidence” that she has made complaints in the past concerning lost mail, Defendant Gibson attached an October 31, 2017 letter from Gonzales that responded to her allegations of lost mail, explained that there was no reliable way of determining what happened and the impossibility of tracing a single piece of First-Class Mail, and apologized for any inconvenience that was caused. (Gov't's Mem. Support Mot. Quash & Remand, Ex. 2 (Gonzales Letter).)

         The state court scheduled a hearing on the Petition for March 6, 2018. (Doc. No. 4-69.) At some time prior to that date, Defendants' counsel served a state court subpoena on Gonzales to attend and testify at the March 6, 2018 hearing. (Gov't's Mem. Support Mot. Quash & Remand, Ex. 1 (Subpoena).) Citing to regulations issued pursuant to United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), the Postal Service declined to authorize Gonzales' attendance at the hearing by letter dated February 15, 2018. (Id., Ex. 3.) On February 22, 2018, Defendants filed a motion to compel Gonzales' compliance with the subpoena and a rule to show cause, which were served on the Postal Service on March 6, 2018.[1] (Doc. No. 4-76 (Civil Cover Sheet of Mot. to Compel & Rule to Show Cause); Doc. No. 4-78 (Certificate of Service).)

         The Government removed the action on March 27, 2018 pursuant to 28 U.S.C. § 1442(a). (See Not. of Removal ¶ 5.) On April 3, 2018, it filed a Motion to Quash and Remand. On April 12, 2018, Reverse Mortgage Solutions filed a Motion to Remand and Objection to Removal. Notably, Reverse Mortgage Solutions does not oppose quashing the subpoena served on Gonzales. (Pl.'s Mot. Remand ¶ 23.) Thus, Reverse Mortgage Solutions objects only to the Government's removal procedure; the Government's Motion as to quashing the subpoena is uncontested. Moreover, both the Government and Reverse Mortgage Solutions seek remand to the Court of Common Pleas of Montgomery County. For the reasons that follow, the Court quashes the subpoena served on Gonzales and remands this matter back to state court.

         II. DISCUSSION

         A. Reverse Mortgage Solutions' Motion to Remand and Objection to Removal

         Prior to addressing the Government's Motion to Quash the subpoenas, we begin first with the threshold issue of whether the Government properly removed this matter to federal court.[2]Reverse Mortgage Solutions asserts that remand is required because (1) the Government's notice of removal was untimely; and (2) the action in foreclosure is not a “pending” action under 28 U.S.C. § 1442(a). (Pl.'s Mot. Remand ¶ 10.) We disagree.

         The Government removed this action pursuant to 28 U.S.C. § 1442(a). A civil action under § 1442(a) is removable “if the person or entity desiring to remove the proceeding files the notice of removal not later than 30 days after receiving, through service, notice of any such proceeding.” 28 U.S.C. § 1446(g). Reverse Mortgage Solutions argues that removal in this case was untimely because the Government was served with the subpoena in December 2017, but it did not file its Notice of Removal until March 27, 2018. (Pl.'s Mot. Remand ¶¶ 15-17.) According to Reverse Mortgage Solutions, removal was therefore untimely because more than thirty days elapsed from the time the subpoena was served until the time of removal.

         The Government, on the other hand, argues that removal was triggered when Defendants filed their motion to compel compliance with the subpoena and the rule to show cause. (Gov't's Mem. Opp'n Pl.'s Obj. to Removal & Resp. to Pl.'s Mot. Remand at 1-2.) Indeed, the United States Courts of Appeals for the Seventh and Ninth Circuits have each held that contempt proceedings or actions in which the federal official must defend his refusal to attend a proceeding, such as a show cause hearing, are removable. See Swett v. Schenk, 792 F.2d 1447, 1450 (9th Cir. 1986) (citing State of Wis. v. Schaffer, 565 F.2d 961, 964 (7th Cir. 1977)) (stating that a contempt action against a federal official for refusing to comply with a state court order “is a distinct action which may be removed”); Schaffer, 565 F.2d at 964 (holding that an order to show cause commenced “a sufficient separate action” based on an official duty to comply with a state order); see also FBI v. Superior Ct. of Cal., 507 F.Supp.2d 1082, 1089 (N.D. Cal. 2007) (stating an action that “involves federal employees ‘threatened with the state's coercive power' while acting within the scope of their duties” is properly in federal court).

         In this case, Defendants served on the Government their motion to compel compliance with the subpoena and a rule to show cause on March 6, 2018. (Doc. No. 4-76 (Civil Cover Sheet of Mot. to Compel & Rule to Show Cause); Doc. No. 4-78 (Certificate of Service).) The rule to show cause specifically required the Government to produce a written response to the motion to compel compliance with the subpoena by April 2, 2018. (Doc. No. 4-76.) Therefore, the March 6, 2018 service of the motion to compel and rule to show cause was the first notice of Gonzales being subjected to compulsion and potential contempt proceedings. See ยง 1446(g) (stating that the thirty-day period for removal begins when the person or entity desiring removal receives notice of such a proceeding through service). The ...


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