Rodriguez v. Federal National Mortgage Association, Civil Action No. 03-30057-MAP (D. Mass. 6/23/2003), Civil Action No. 03-30057-MAP.

• Docket Number: Civil Action No. 03-30057-MAP.
• Decision Date: 23 June 2003
• Parties: NEFTALI RODRIGUEZ and EDWIN GONZALEZ, Plaintiffs, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant.
• Court: U.S. District Court — District of Massachusetts

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NEFTALI RODRIGUEZ and EDWIN GONZALEZ, Plaintiffs,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant. Civil Action No. 03-30057-MAP. United States District Court, D. Massachusetts. June 23, 2003.

Thomas J. McCormick, Heisler, Feldman & McCormick, Springfield, MA., for Edwin Gonzalez (Counter Claimant).

Kevin F. Moloney, Barron & Stadfield, Boston, MA., for Federal National Mortgage Association (Counter Defendant).

MEMORANDUM AND ORDER WITH REGARD TO EDWIN GONZALEZ'S MOTION TO REMAND (Document No. 02)

KENNETH P. NEIMAN, Magistrate Judge.

Edwin Gonzalez ("Gonzalez") moves to remand the instant action to the Hampden County Housing Court from which it was removed by the Federal National Mortgage Association ("FNMA"). FNMA opposes the motion, stating that removal was proper because the action involves a federal question regarding 12 U.S.C. § 1723a, the statute under which FNMA is chartered. Gonzalez's motion to remand was originally referred to this court for a report and recommendation, see 28 U.S.C. § 636(b), but the parties have since consented to the court's jurisdiction, see 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b).

Gonzalez's motion poses an interesting question of law: whether FNMA, which was both the plaintiff and the defendant-in-counterclaim in the state lawsuit, can remove the action to federal court once it dismissed its claims against Gonzalez and became, ostensibly, the "defendant" in the state court proceedings. For the reasons explained below, the court concludes that the answer to that question is no and, accordingly, will allow Gonzalez's motion to remand.

I. BACKGROUND

The procedural background to this case is essentially undisputed. On January 3, 2003, FNMA, as plaintiff, filed a summary process (eviction) complaint in the Hampden County Housing Court with respect to real property located at 11 Butternut Street in Springfield, Massachusetts (the "premises"). Named in the complaint were both Neftali Rodriguez ("Rodriguez"), the owner of the premises prior to FNMA's acquisition of title through foreclosure, and Gonzalez, Rodriguez's former tenant, who was still occupying the premises. Rodriguez never responded to the complaint and, as the parties acknowledge, Gonzalez is the real party in interest.

On January 21, 2003, Gonzalez answered the complaint and asserted counterclaims under Massachusetts' consumer protection and civil rights statues. Both of Gonzalez's counterclaims concern an FNMA notice left at or mailed to him following FNMA's acquisition of the premises. Gonzalez purported to assert the counterclaims on behalf of a class of persons who received similar FNMA notices as tenants or occupants of properties in the four western Massachusetts counties.

On February 26, 2003, FNMA and Gonzalez entered into a stipulation which provided for (1) the dismissal, without prejudice, of FNMA's summary process complaint and (2) the transfer of Gonzalez's counterclaims against FNMA from the summary process docket to the regular civil docket of the Housing Court. The stipulation further provided that, subject to an order of a court with...