United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION, REMANDING THE CASE TO THE VERMONT
SUPERIOR COURT, WASHINGTON COUNTY CIVIL DIVISION, AND
GRANTING PLAINTIFF'S MOTION TO REMAND (DOCS. 78 &
Christina Reiss, United States District Court
matter came before the court for a review of the Magistrate
Judge's December 27, 2018 Report and Recommendation
("R & R") (Doc. 78), in which he recommended
the court remand to the Vermont Superior Court, Washington
County Civil Division (the "Vermont Superior
Court") the ejectment action initially filed in that
court by Plaintiff Harmony Holdings, LLC and removed to this
court by self-represented Defendants Linda Lounsbury Van Eck
and Jan Van Eck (collectively, "Defendants"). On
December 28, 2018, Plaintiff filed a motion to remand to the
state court. (Doc. 80.) On January 15, 2019, Defendant Jan
Van Eck ("Defendant Van Eck") objected to the R
& R and opposed Plaintiffs motion to remand.
Factual and Procedural Background.
April 5, 2018, Plaintiff filed a Complaint in the Vermont
Superior Court asserting claims for (1) breach of a rental
agreement; (2) breach of a purchase contract; and (3) unjust
enrichment and seeking $3, 000 in unpaid rent and damages.
Contrary to Defendant Van Eck's contention, no claim for
a violation of the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. §§ 1692-92p, may be
found in the Complaint or Amended Complaint.
alleges that it owns property in Northfield, Vermont with
regard to which the parties entered into a purchase and sale
agreement. Defendants sought to reside in the rental unit on
the property and entered into a rental agreement whereby
Defendants took occupancy and agreed to make monthly payments
until they purchased the property. Plaintiff further alleges
that Defendants failed to make scheduled payments but
continued to reside in the rental unit. As a result,
Plaintiff served them with a notice of the termination of
2, 2018, Defendants filed a motion to dismiss, and on May 7,
2018 Plaintiff filed a motion to amend its Complaint to
update the caption to reflect Defendants' alleged
aliases. On May 18, 2018, the Vermont Superior Court granted
Plaintiffs motion to amend. Plaintiff subsequently filed a
Second Amended Complaint, and Defendants filed a supplemental
motion to dismiss. Thereafter, on June 11, 2018, Defendants
filed their Answer and asserted counterclaims against
Plaintiff. The Vermont Superior Court denied Defendants'
supplemental motion to dismiss on September 20, 2018. On
November 30, 2018, Defendants removed the case to this court.
Legal Analysis and Conclusions.
Standard of Review.
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999). The district
judge may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1); accord
Cullen, 194 F.3d at 405. A district judge, however, is
not required to review the factual or legal conclusions of
the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed.
Thomas v. Arn, 474 U.S. 140, 150(1985).
parties are generally accorded leniency when making
objections. See Walker v. Vaughan, 216 F.Supp.2d
290, 292 (S.D.N.Y. 2002) (quoting Vasquez v.
Reynolds, 2002 WL 417183, at *5 (S.D.N.Y. Mar. 18,
2002)). Nevertheless, "even a pro se
party's objections to a Report and Recommendation must be
specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a
'second bite at the apple' by simply relitigating a
prior argument." Dixon v. Ragland, 2007 WL
4116488, at *1 (S.D.N.Y. Nov. 16, 2007).
Whether the Court has Subject Matter Jurisdiction.
subject matter jurisdiction requires a "federal
question," 28 U.S.C. § 1331, or plaintiffs and
defendants of diverse citizenship with an amount in
controversy that exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332. "[F]ailure of subject
matter jurisdiction is not waivable and may be raised at any
time by a party or by the court sua sponte. If
subject matter jurisdiction is lacking, the action must be
dismissed." Lyndonville Sav. Bank & Tr. Co. v.
Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000); see
also Fed. R. Civ. P. 12(h)(3) ("If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.").
"The burden of persuasion for establishing diversity
jurisdiction .. . remains on the party asserting it[,
]" and "allegations of jurisdictional facts . . .
must [be] support[ed] ... by competent proof." Hertz
Corp. v. Friend, 559 U.S. 77, 96-97 (2010).
respect to the Magistrate Judge's conclusion that the
court's jurisdiction is based solely on diversity of
citizenship, Defendant Van Eck argues that federal question
jurisdiction exists because "the matter sounds in breach
of the Fair Debt Collection Practices Act[.]" (Doc. 84
at 1.) A claim based on a violation of the FDCPA requires a
plaintiff to allege, among other things, that the plaintiff
is a "consumer" and the defendant is a "debt
collector" as those terms are defined in the FDCPA.
Plaintiff does not allege an FDCPA violation. See
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)
("The presence or absence of federal-question
jurisdiction is governed by the 'well-pleaded complaint
rule,' which provides that federal jurisdiction exists
only when a federal question is presented on the face of the
plaintiffs properly pleaded complaint."). There is no
federal question in either the Complaint or Amended Complaint
and Defendant Van Eck may not create one by recharacterizing
Plaintiffs claims. See Id. ("The [well-pleaded
complaint] rule makes the plaintiff the master of the claim;
he or she may avoid federal jurisdiction by exclusive
reliance on state law."). Because eviction is a state
law claim and does not present a federal question, federal
question jurisdiction is not present. See 9 V.S.A.
Van Eck further contests the Magistrate Judge's
conclusion that the parties are all Vermont citizens.
Defendant Jan Van Eck contends that he is a citizen of Canada
who is "permitted to live here quietly as a guest of the
United States[, ]" and that Defendant Linda Van Eck has
an out of state driver's permit. (Doc. 84 at 5.) They
allege that Plaintiff is "an alien" and is merely
an alter-ego of Nancy Carpenter, a South Dakota resident, who
purportedly filed falsified documentation with the Vermont
Secretary of State improperly claiming to be a Vermont
corporation. (Doc. 1 at 1.) Defendants further challenge the
Magistrate Judge's ...