Bank of America, N.A. v. Swartz et al, No. 5:2015cv00096 - Document 4 (E.D. Ky. 2015)

Court Description: MEMORANDUM OPINION & ORDER: that this matter is REMANDED to Bath Circuit Court. Signed by Judge Joseph M. Hood on 4/20/15.(KJR)cc: COR, Bath Circuit Court

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Bank of America, N.A. v. Swartz et al Doc. 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON ) ) ) ) ) ) ) ) ) BANK OF AMERICA, N.A. Plaintiff, v. JEFFREY SWARTZ, et al., Civil Case No. 5:15-cv-96-JMH MEMORANDUM OPINION AND ORDER Defendants. *** This matter is before the Court upon its own motion. While no party has moved to remand this matter to state court, it is incumbent upon the Court to ensure that it has subject matter jurisdiction over removed cases. lacks subject matter shall be remanded. The Court concludes that it jurisdiction and, accordingly, the case See 28 U.S.C. § 1447(c); see also Fed. R. Civ. P. 12(h)(3). In May 2013, Bank of America, N.A. (“BANA”) filed this action Circuit as a foreclosure Court. counterclaim, Jeffrey alleging proceeding Swartz various in filed claims Bath a County, timely under state Kentucky answer and law. In February 2015, Swartz filed an amended counterclaim in which he added a claim against BANA pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. On March 30, 2015, BANA’s foreclosure claim against Swartz was dismissed—thus, the only Dockets.Justia.com remaining claims were Swartz’s counterclaims against BANA.1 BANA removed the action to this Court on April 10, 2015. BANA argues that removal is proper pursuant to 28 U.S.C. Sections 1441 and 1331 because the parties have been “realigned” and BANA is now the defendant in what has become a federalquestion case. Relying on Terry v. Jackson, 19 F. App’x 377 (6th Cir. 2001), BANA contends that this outcome is correct because jurisdiction is determined by the parties’ status at the time of removal. BANA relies on a mere snippet from Terry, however, and it is taken out of context in BANA’s notice of removal. Terry concerns fraudulent joinder jurisdiction case, which is not at issue here. in a diversity- The Terry case, in turn, references the oft-cited Rogers v. Wal-Mart Stores, 230 F.3d 868 (6th Cir. 2000), which concerns amount in controversy as determined at the time of removal, which also is not at issue here. Ultimately, the removal statute is to be construed strictly and all doubts should be resolved in favor of remand. Shupe v. Asplundh Tree Expert Co., 566 F. App’x 476, 478 (6th Cir. 2014). BANA attempts to remove its own lawsuit to federal court, which is impermissible, no matter how creative the attempt. See La 1 On April 14, 2015, this Court received a telephone message from Judge Maze of the Bath County Circuit Court reporting that, following BANA’s removal of this case to federal court, the Bath County Circuit Court vacated its previous order dismissing BANA’s foreclosure claim against Swartz. 2 Chemise Lacoste v. Alligator Co., Inc., 506 F.2d 339, 343 n.4 (3d Cir. claims 1974). began life Further, as a BANA’s Fair counterclaim Credit and, as Reporting this Court stressed, counterclaims cannot form the basis for removal. Act has See Park Equine Hosp., PLLC v. Braugh, 5:13-cv-100, 2013 WL 2406093, at *3 (May 30, 2013 E.D. Ky.); see also Double D Ranch, LLC v. Jackson, 5:04-cv-88 (Dec. 2, 2005 E.D. Ky). Accordingly, IT IS ORDERED that REMANDED to Bath County Circuit Court. This the 20th day of April, 2015. 3 this matter is hereby

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