United States District Court, N.D. Illinois, Eastern Division
BAC HOME LOANS SERVICING, LP, now known as BANK OF AMERICA, N.A. Plaintiff,
LAUREN J. TRATAR and STEVEN T. OLSON, Defendants.
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge.
the Court is Plaintiff's motion  to remand the case to
state court pursuant to 28 U.S.C. § 1447(c). For the
reasons set forth below, the Court grants Plaintiff's
motion and remands this case to the 18th Judicial Circuit
DuPage, Illinois for further proceedings.
7, 2010, Plaintiff filed a mortgage foreclosure action in the
Circuit Court of the 18th Judicial Circuit DuPage
County, Illinois against Defendants Lauren J. Tratar and
Steven T. Olson. [8, at 1.] Defendant Tratar, then
represented by counsel, filed a second amended answer on May
10, 2013. Defendant Tratar also made two attempts to file a
counterclaim, both of which were stricken by the court. On
September 23, 2013, Defendant Tratar filed an additional
counterclaim with leave of the court, which was dismissed
with prejudice. On or around June 16, 2015, Defendant Tratar,
acting pro se, filed a motion for leave to file
amended affirmative defenses and counterclaim and a motion
for summary judgment. Defendant Tratar's motion for
summary judgment was denied on November 12,
March 22, 2016, nearly six years after the complaint was
filed, Defendant Tratar filed her notice of removal alleging
two bases of subject matter jurisdiction. [1.] Defendant
Tratar alleges that the Court has federal question
jurisdiction because her motion for summary judgment
“was a new counter-claim based upon the Truth in
Lending Act.” [1, at ¶ 13.] She also contends that
the Court has diversity jurisdiction because Plaintiff has
its principal places of business in Charlotte, North Carolina
and both Defendants reside in Illinois, and the amount in
controversy exceeds $75, 000. [1, at ¶ 15-17.] On March
28, 2016, Plaintiff filed a motion to remand , arguing
that Defendant Tratar's notice of removal is untimely and
does not comply with § 1446(a) or § 1446(b)(2)(a)
because Defendant Tratar did not obtain consent in removal
from all Defendants and did not include a copy of the entire
state court file with the notice of removal.
federal removal statute permits a defendant to remove a civil
action from state court when a district court has original
jurisdiction over the action.” Micrometl Corp. v.
Tranzact Techs., Inc., 656 F.3d 467, 470 (7th Cir. 2011)
(citing 28 U.S.C. § 1441(a)). “Removal must be
effected within thirty days after a defendant receives a copy
of the state court complaint, or is served, whichever occurs
first.” N. Illinois Gas Co. v. Airco Indus. Gases,
A Div. Of Airco, Inc., 676 F.2d 270, 273 (7th Cir. 1982)
(citing 28 U.S.C. § 1446(b)). The Seventh Circuit has
called this time limitation “a strictly applied rule of
deciding whether to remand a case, the Court assumes the
truth of the factual allegations of the complaint.
Sheridan v. Flynn, 2003 WL 22282378, at *3 (N.D.
Ill. Sept. 30, 2003). A plaintiff's choice of forum is
presumed valid, and the Court must resolve any doubts about
jurisdiction in favor of remand. See, e.g., Schur v. L.A.
Weight Loss Centers, Inc., 577 F.3d 752, 758 (7th Cir.
2009); Schmude v. Sheahan, 198 F.Supp.2d 964, 966
(N.D. Ill. 2002) (“Generally, the removal statute is
strictly construed, with an eye towards limiting federal
jurisdiction”). The party seeking removal has the
burden of establishing federal jurisdiction. Schur,
577 F.3d at 758; Schimmer v. Jaguar Cars, Inc., 384
F.3d 402, 404 (7th Cir. 2004) (defendant must demonstrate
“reasonable probability that subject-matter
argues that Defendant Tratar's motion to remand is
untimely as it was filed nearly six years after the complaint
was filed and that since her delay in filing was not due to
extraordinary circumstances outside of her control, she is
not entitled to equitable tolling of the thirty-day time
limit to remove. The Court agrees that Defendant Tratar's
motion to remand is untimely. Assuming for the sake of
argument that grounds for diversity jurisdiction were present
in the original complaint, the thirty-day removal clock has
long since run.
Tratar, now representing herself pro se, contends
that her motion for summary judgment is a “new
counter-claim based on the Federal Statute Truth in Lending
Act, (TILA), 15 U.S. Code § 1501.” She argues that
she was prompted to file her motion for summary judgment by
the January 13, 2015 Supreme Court decision in Jesinoski
v. Countrywide Home Loans Inc., 135 S.Ct. 790 (2015),
which she alleges “impacted the state case.” [11,
at 1.] According to Defendant Tratar, she was not previously
aware that she could remove the case and acted immediately
when she learned that she could. Defendant Tratar's
argument is difficult to follow, but she alleges that
“[p]ursuant to 28 U.S.C. § 1332 the case is
removable under Diversity Jurisdiction as it was filed within
1 year of the Defendant's federal claim.” Defendant
Tratar's arguments fail for several reasons. First of
all, her motion for summary judgment was denied on November
12, 2015, and it was not “a new
even if it were a counterclaim, the U.S. Supreme Court has
held that a counterclaim cannot serve as the basis for
federal question jurisdiction. Holmes Grp., Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S.
826, 831 (2002).
arguing that she was not previously aware that she could
remove the case, Defendant Tratar may be attempting to invoke
§ 1446(b)(3), which provides that
if the case stated by the initial pleading is not removable,
a notice of removal may be filed within thirty days after
receipt by the defendant * * * of a copy of an amended
pleading * * * from which it may first be ascertained ...