United States District Court, District of Columbia
BEVERLEY MARECHEAU MITCHELL and M. GLENN MITCHELL, Plaintiffs,
U.S. BANK NATIONAL ASSOCIATION, as Trustee for Wells Fargo Asset Securities Corporation Mortgage Pass-Through Certificates Series 2006-AR4, Defendant.
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
2006, pro se Plaintiffs Beverley and M. Glenn
Mitchell secured a $960, 000 loan from Wells Fargo to
purchase property located in the District of Columbia. ECF
No. 1, (“Notice of Removal) at Ex. A, Compl.
¶¶ 1-3; ECF No. 7 (Defs. Br.) at Ex. B. After
Plaintiffs began having difficulty paying their loan, they
contacted Wells Fargo sometime in 2010 or early 2011
requesting a loan modification. Compl. ¶¶ 17-18.
According to Plaintiffs, Wells Fargo took several years to
offer a modification, later reneged on the offer and, during
another round of modification negotiations in June 2015,
unexpectedly filed a foreclosure proceeding in the District
of Columbia Superior Court (hereinafter “Superior
Court”). Id. ¶¶ 17-38; ECF No. 13
(Defs. Reply) at Ex. B.
two years later, on May 3, 2017, Plaintiffs filed a complaint
against Wells Fargo's Trustee, U.S. Bank National
Association (“USBNA”) in Superior Court.
Id. at Ex. A. Several months later, however, the
Superior Court dismissed Plaintiffs' lawsuit without
prejudice because, according to Plaintiffs, their attorney
became ill and failed to notify the court when he was unable
to appear at a hearing. ECF No. 11 (Pls. Resp.) ¶ 6;
Defs. Reply at Ex. A; Defs. Reply at 4 n.2.
days after their case was dismissed, Plaintiffs filed a
seventy-six paragraph complaint against USBNA in Superior
Court alleging that Wells Fargo has handled their mortgage
modification request and the foreclosure proceedings
fraudulently, in bad faith, and in violation of the District
of Columbia Consumer Protection Procedures Act
(“CPPA”). See Notice of Removal ¶
1; id. at Ex. A; D.C. Code § 28-3904.
Plaintiffs asked the Superior Court to: (1) stay the
foreclosure proceedings in order to allow them to enter into
a loan modification agreement; (2) dismiss the foreclosure
proceedings once they have demonstrated a record of timely
payments; (3) remove all “unreasonable charges”;
(4) return their mortgage to good standing; and (5) award
Plaintiffs compensatory and punitive damages. Notice of
Removal at Ex A, Complaint pp. 14-15.
October 6, 2017, Plaintiffs made an oral motion-over
USBNA's objection-in the foreclosure proceeding
requesting consolidation with their fraud lawsuit. Defs.
Reply at Ex. B. The Judge denied the motion, advising
Plaintiffs to file a written motion. Id. Before
Plaintiffs could do so, however, on October 11 USBNA removed
the fraud action to this court on the basis of diversity
jurisdiction and subsequently, filed a Motion to Dismiss. ECF
Nos. 1, 7. USBNA asks this court to dismiss this lawsuit for
various reasons, including: (1) statute of limitations
grounds; (2) Plaintiffs' failure to identify the
provisions of the CPPA that Wells Fargo allegedly violated;
and (3) Plaintiffs' failure to set forth facts that would
support their fraud and bad faith allegations. Finally,
citing the Anti-Injunction Act, 28 U.S.C. § 2283,
Younger v. Harris, 401 U.S. 37 (1971),
USBNA urges this court to abstain from granting any relief
that might interfere with the foreclosure proceedings.
response, Plaintiffs filed an “Objection of
Removal” arguing that this action should not have been
removed because it is “directly connected to the
foreclosure case, ” and therefore the cases should not
be “addressed separately.” Pls. Resp. ¶ 1.
Plaintiffs contend that USBNA acted in bad faith by removing
this action in an effort to preempt Plaintiffs' attempts
to consolidate it with the pending foreclosure action.
Id. ¶ 8. Plaintiffs also contend that their
fraud litigation would be unnecessary if USBNA would process
their loan modification request in good faith. Id.
construes Plaintiffs' response as a motion to remand and
argues that Plaintiffs' request was untimely.
See 28 U.S.C. § 1447(c) (“A motion to
remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal under section
1446(a).”). USBNA also notes that Plaintiffs do not
challenge USBNA's assertion of diversity jurisdiction and
therefore remand for lack of jurisdiction is not appropriate.
See id. (“If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
response, Plaintiffs-without leave of court-filed a
“Notice of Withdrawal of Case” asking the court
to “withdraw” or dismiss this matter without
prejudice. ECF No. 14. Plaintiffs indicate that this case and
the foreclosure case “address interconnected and
related issues between the parties concerning”
Plaintiffs' mortgage. Id. ¶ 2. Plaintiffs
also indicate that since they have asserted counterclaims in
the foreclosure case that are “identical” to the
issues raised here, their suit in this court is duplicative.
Id. ¶ 3.
admonishing the Plaintiffs for filing what amounts to a
sur-reply without seeking leave, the court allowed USBNA to
file a reply to Plaintiffs' “Notice.” ECF No.
15. In the reply, USBNA confirmed that Plaintiffs have
asserted a fraud counter-claim in the foreclosure action. ECF
No. 16, (Defs. Second Reply) at 3. USBNA expressed
consternation that “[a]t no time prior to removal, did
the Plaintiffs seek to file any counterclaim in the then
two-year-old Foreclosure Action, ” but rather chose to
file two lawsuits asserting their fraud claims. Id.
2-3. USBNA again urges this court to dismiss this action on
substantive and timeliness grounds. Should this court,
instead, dismiss this action without prejudice, USBNA asks
this court to award it attorneys' fees and costs
“for amounts incurred by [USBNA] in removing this case
and seeking dismissal of Plaintiffs' suit for a
second time in this action.” Id. at 3 n.1
(emphasis in original).
is correct that Plaintiffs have not set forth any arguments
that might support remand. There is no indication
jurisdiction is lacking or that the removal was defective.
See 28 U.S.C. § 1447(c). Even had the removal
been defective, Plaintiffs' remand request is untimely
because it was filed more than thirty days after the notice
of removal. See id. USBNA is also correct that this
court is unable to stay or dismiss the foreclosure
proceedings, remove all “unreasonable charges” or
return Plaintiffs' mortgage to good standing. See
Kaempfer v. Brown, 684 F.Supp. 319, 321 (D.D.C. 1988),
aff'd, 872 F.2d 496 (D.C. Cir. 1989) (“The
authority and equitable power to enjoin a proceeding in a
state court is restricted and limited by Title 28 of the
United States Code. Section 2283 of that Title prohibits a
federal court from enjoining proceedings in a state court,
‘except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction or to protect or
effectuate its judgments.'”) (citing 28 U.S.C.
§ 2283) (alterations omitted).
other hand, USBNA has not pointed to any legal barrier to
dismissal of this action without prejudice. Pursuant to
Federal Rule of Civil Procedure 41(a), a plaintiff may
voluntarily dismiss an action, without consent of the
defendant or the court, so long as the plaintiff files the
notice of dismissal before the defendant files an answer or a
motion for summary judgment. Moreover, “[t]he right of
voluntary dismissal by notice prior to service of the answer
or a motion for summary judgment extends as fully to cases
removed from a state court as it does to cases commenced in a
federal court.” Wilson v. City of San Jose,
111 F.3d 688, 694 (9th Cir. 1997) (citing 9 Wright & Miller,
Federal Practice & Procedure § 2363 (2d ed.
1995)). Likewise, voluntary dismissal is available where the
defendant files a Rule 12(b) motion that does not rely on
materials outside the pleadings. Wright & Miller § 2363
at 427 (3d ed. 2008); see Fed. R. Civ. P.
41(a)(1)(A)(ii), 41(a)(2); Black Ride III, Inc. v.
West, No. CIV.A. 104CV01027RBW, 2005 WL 1522055, at *3
(D.D.C. June 28, 2005).
if the 12(b)(6) motion is accompanied by materials outside
the pleadings and the court converts the motion to one for
summary judgment under Rule 56, dismissal requires the
consent of opposing counsel or court approval. See Black
Ride III, 2005 WL 1522055, at *3; Fed.R.Civ.P.
41(a)(1)(A)(ii). Under Rule ...