United States District Court, D. Massachusetts
Robert P. Marley, II, Plaintiff,
The Bank of New York Mellon, Defendant.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
case involves an attempt by Robert P. Marley, II
(“plaintiff” or “Marley”) to
discharge a mortgage encumbering his property in Lynnfield,
Massachusetts. The Bank of New York Mellon
(“defendant” or “BNY Mellon”)
successfully moved to intervene in the case while it was in
state court and now seeks to dismiss plaintiff's
before the Court are defendant's motion to dismiss
plaintiff's claims and plaintiff's motion to remand
the case to state court. Also pending are plaintiff's
motions for a stay or an extension of time to file a response
to defendant's motion to dismiss and for a scheduling
order. For the reasons that follow, 1) defendant's motion
to dismiss will be allowed, 2) plaintiff's motion to
remand will be denied and 3) plaintiff's motions for a
stay or an extension of time and for a scheduling order will
be denied as moot.
January, 2016, Marley filed a petition, pursuant to M.G.L. c.
240, § 15(a)-(b), in the Massachusetts Superior Court
for Essex County, to discharge a mortgage on real property
that he owns at 18 Lakeview Drive in Lynnfield,
Massachusetts. Initially, Marley listed no respondents to the
case but, after a court order directing him to do so, Marley
served several interested parties, including BNY Mellon, with
notice of his petition.
accepting service, BNY Mellon and other interested parties
removed the case to this Court and it was assigned to the
session of Chief District Judge Patti B. Saris (“Judge
Saris”). In September, 2016, Judge Saris remanded the
case to Essex Superior Court because one of the interested
parties had not consented to its removal.
state court, in December, 2016, BNY Mellon successfully moved
to intervene in the case because it had been assigned the
subject mortgage. The Superior Court then directed the other
interested parties who had been served to move to intervene
on or before January 9, 2017. No other parties so moved and,
as a result, BNY Mellon became the only respondent in the
January 12, 2017, BNY Mellon again removed the case to this
Court and it was assigned to this session. The following
week, BNY Mellon moved to dismiss Marley's petition for
failure to state a claim upon which relief can be granted.
Marley did not oppose the motion but instead filed a motion
to stay the case or, alternatively, to extend the time
allotted for a response because he was recovering from
surgery. Two weeks later, in March, 2017, Marley filed a
motion for a scheduling order and a motion to remand the
case. This memorandum addresses all four pending motions.
Plaintiff's Motion to Remand
moves to remand the case, pursuant to 28 U.S.C. §
1446(b)(1), on grounds that the removal was untimely and that
the order entered by Chief Judge Saris previously remanding
the case prevents BNY Mellon from removing it a second time.
first contention, that defendant's notice of removal was
untimely, is unpersuasive. Defendant removed the case
pursuant to 28 U.S.C. § 1446(b)(3) not, as plaintiff
claims, 28 U.S.C. § 1446(b)(1).
plaintiff asserts that defendant's instant attempt to
remove is, in effect, an improper appeal of the first remand
order in violation of § 1447(d). The Court disagrees.
28 U.S.C. § 1447(d) provides that:
[a]n order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise, except
that an order remanding a case to the State court from which
it was removed pursuant to section 1442 or 1443 of ...