United States District Court, D. Hawaii
ORDER SUA SPONTE REMANDING THE INSTANT CASE TO STATE
E. KOBAVASHI UNITED STATES DISTRICT JUDGE
February 13, 2019, pro se Defendant/Counterclaimant Albert M.
Goldberg (“A. Goldberg”) filed: a “Notice
of Removal of the Above State No. 13-1-084K to the United
States District Court of Hawaii” (“Notice of
Removal”); and a “Request for Injunction and
Temporary Restraining Order” (“TRO
Motion”). [Dkt. nos. 1, 2.] On February 22, 2019,
Plaintiff/Counterclaim Defendant Bank of America, N.A.
(“BOA”) and A. Goldberg each filed a response
addressing the issues raised in this Court's February 14,
2019 entering order (“EO”). [Dkt. nos. 8 (EO), 11
(“BOA Response”), 12 (“A. Goldberg
Response”).] On March 15, 2019, A. Goldberg filed a
document that has been construed as a supplement to the A.
Goldberg Response (“A. Goldberg Supplement”) and
a declaration by Defendant/Counterclaimant Elinor K. Goldberg
(“E. Goldberg”), that has also been construed as
a supplement to the A. Goldberg Response (“E. Goldberg
Supplemental Declaration”). [Dkt. nos. 15 (A. Goldberg
Supplement), 16 (E. Goldberg Suppl. Decl.), 17 (EO construing
filings).] The instant case is sua sponte remanded
to the State of Hawai`i, Third Circuit Court (“state
court”) for the reasons set forth below.
February 1, 2013, BOA filed a Complaint for Foreclosure
(“Complaint”) in state court against: E.
Goldberg; A. Goldberg; Defendant Mortgage Electronic
Registration Systems Inc. (“MERS”), solely as
nominee for Countrywide Home Loans, Inc.
(“Countrywide”); and Defendant Pualani Estates at
Kona Community Association (“Pualani Estates”).
[Notice of Removal, Exh. A at 9-15 (Complaint). The Complaint
seeks to foreclose upon a property in Kona that is owned by
E. Goldberg - in her individual capacity and in her capacity
as the wife of Samuel A. Goldberg, deceased - and A. Goldberg
as joint tenants (“Property”). [Complaint at
¶ 1.] According to the Complaint: MERS may have an
interest in the Property because of “a junior mortgage
recorded on June 21, 2005 in the Bureau of Conveyances of the
State of Hawaii” (“BOC”); [id. at
¶ 2;] and Pualani Estates may have an interest in the
Property because of an unrecorded lien for unpaid maintenance
fees, [id. at ¶ 3].
Goldberg and A. Goldberg (“the Goldbergs”) filed
a Counterclaim, alleging breach of contract and unfair and
deceptive trade practices. [BOA Response, Decl. of Allison
Mizuo Lee (“Lee Decl.”), Exh. 1 (Answer to
Complaint for Foreclosure; Counterclaim, filed on 3/31/14 in
state court (“Answer and Counterclaim”)).] The
state court dismissed the Complaint on July 30, 2014 because
of a violation of circuit court rules. [Lee Decl., Exh. 2
(Order of Dismissal).] According to BOA's counsel, the
Goldbergs have actively pursued their Counterclaim, including
opposing BOA's motion to dismiss and participating in
discovery. On February 1, 2019, BOA filed a motion for
summary judgment on the Counterclaim, and the state court set
the motion for hearing on March 1, 2019. A. Goldberg
apparently filed the Notice of Removal in lieu of responding
to the motion for summary judgment. [Lee Decl. at ¶¶
Goldberg removed this action based on: federal question
jurisdiction; diversity jurisdiction; and jurisdiction over
admiralty, maritime, and prize cases. [Notice of Removal at
pgs. 8-10.] He alleges federal question jurisdiction exists,
pursuant to the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692k. [Id.
at pg. 2.] The Notice of Removal does not contain any
indication that A. Goldberg: 1) obtained E. Goldberg's,
MERS's, or Pualani Estates' consent to the removal;
or 2) served the Notice of Removal on any of those
defendants. See Notice of Removal at 13-14 (Proof of
Service, noting service on BOA only).
Goldberg asserts removal was timely because “the
initial pleading was amended and recently discovered
by” him. [A. Goldberg Response at 2.] He asserts he
recently discovered that BOA was not the beneficiary of the
promissory note that the mortgage on the Property secures
(“Note”), and he recently offered to tender full
payment on the Note, but BOA has ignored this offer.
[Id.] A. Goldberg states E. Goldberg is his
eighty-nine-year-old mother and he was authorized to act on
her behalf. Id. at 3; see also E. Goldberg
Suppl. Decl. at pg. 9 (“I attest and affirm that I am
aware of the Removal. I also approve of my son's
actions.”). A. Goldberg argues he was not required to
obtain MERS's and Pualani Estates' consent to the
removal because they have been improperly identified as
defendants in this action. He asserts Countrywide is
BOA's predecessor in interest, and therefore MERS, as
Countrywide's nominee, should be a plaintiff, not a
defendant. [A. Goldberg Response at 3.] He also asserts
Pualani Estates is not a proper defendant because it
“is merely the Association” for the Property.
Goldberg states he traveled to Honolulu and Kailua-Kona to
complete or confirm service of the Notice of Removal on E.
Goldberg, MERS, and Pualani Estates. A. Goldberg states a
separate proof of service will be submitted. [Id. at
4.] However, no additional proof of service for the Notice of
Removal was filed.
Scope of Attempted Removal
Plaintiff attached the Complaint to the Notice of Removal,
but BOA has presented evidence that the Complaint has been
dismissed and only the Goldbergs' Counterclaim remains at
issue. Thus, it is not clear whether A. Goldberg is
attempting to remove the entire case or whether he is
attempting to remove the Counterclaim only because there are
no remaining issues regarding the Complaint.
U.S.C. § 1441(a) states:
Except as otherwise expressly provided by Act of Congress,
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 the
defendants, to the district court of the United
States for the district and division embracing the place
where such action is pending.
(Emphasis added.) To the extent A. Goldberg is attempting to
remove the Counterclaim only, the attempt fails as a matter
of law because A. Goldberg is a plaintiff in the Counterclaim
and only the defendant is entitled to remove an action.
See § 1441(a); see also Wilmington Sav.
Fund Soc'y, FSB v. Perreira, CIVIL 16-00029 LEK-KSC,
2016 WL 3034154, at *3-4 (D. Hawai`i May 27, 2016)
(“Defendant cannot create federal subject matter
jurisdiction based on an attempt to raise . . . defenses or
counterclaims under federal law.” ...