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Marley v. The Bank of New York Mellon

United States District Court, D. Massachusetts

September 10, 2017

Robert P. Marley, II, Plaintiff,
v.
The Bank of New York Mellon, Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge.

         This 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 petition.

         Pending 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.

         I. Background

         In 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.

         After 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.[1]

         Back in 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 case.

         On 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.

         II. Plaintiff's Motion to Remand

         Plaintiff 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.

         Plaintiff's 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).

         Second, 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 ...

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