United States District Court, D. Colorado
FARLAN A. ROBERTSON; and, LAURA E. ROBERTSON Plaintiffs,
U.S. BANK NATIONAL ASSOCIATION; OCWEN LOAN SERVICING, LLC; BARRETT FRAPPIER & WEISSERMAN, LLP; and NICOLE WILLIAMS, Defendants.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion to
Remand (ECF No. 22), requesting this Court to remand this
action from where it was removed. Defendants U.S. Bank
National Association and Ocwen Loan Servicing, LLC
(collectively, “Lender Defendants”) have filed a
response. The Court finds no further briefing is required.
Upon consideration of the record, and the applicable law, the
Court finds and orders as follows.
consolidated action was removed to this court by Lender
Defendants, with the consent of Defendant Barrett Frappier
& Weisserman, LLP,  based on federal question jurisdiction
over the federal claims and supplemental jurisdiction over
the state law claims. Thereafter, Plaintiffs amended their
complaint, withdrawing the federal claims upon which removal
was based. Plaintiffs' Motion followed.
cases are related, but different. Defendant U.S. Bank filed
its action first. It filed a Verified Motion for Order
Authorizing a Foreclosure Sale under C.R.C.P. 120 (the
“Foreclosure Proceeding”), seeking foreclosure of
Plaintiffs' real property in Pueblo County, Colorado.
Thereafter, Plaintiffs filed their action against Defendants.
Essentially, in that action, Plaintiffs alleged that
Defendants mishandled Plaintiffs' loan and wrongfully
filed the Foreclosure Proceeding. Plaintiffs moved to
consolidate the two actions, which motion was granted by the
state court. The Lender Defendants' removal of the
consolidated action to this court followed.
now seek a remand arguing (1) there are no longer any federal
claims at issue; (2) Defendants waived their right to remove
since they filed the Foreclosure Proceeding in state court in
the first instance; and (3) federal court is not the proper
jurisdiction for a state court foreclosure action. In
response, Lender Defendants argue (2) this court has
supplemental jurisdiction over the state law claims, which
they concede this court may decline to exercise; (2)
Plaintiffs waived any right to remand based on procedural
irregularities by filing an amended complaint; and (3) Lender
Defendants waived no right to remove this action once it was
removable upon consolidation. The Court addresses these
arguments below, although not in the order raised.
Court starts by addressing three preliminary matters. First,
the Court finds it had subject matter jurisdiction when the
action was removed due to the then pending federal claims.
Next, concomitantly, the Court finds there was no waiver of
any right to remove the consolidated action by Defendant U.S.
Bank based on the contention that it filed the Foreclosure
Proceeding in state court. Plaintiffs fail to show that a
C.R.C.P. 120 action could originally have been filed
in federal court. Moreover, as Lender Defendants contend, any
procedural irregularities were waived by Plaintiffs'
filing of an amended complaint without raising such
the Court finds Plaintiffs are arguing for remand based not
only on any procedural irregularity in the removal process
but also on whether subject matter jurisdiction now exists.
And, Plaintiffs' filing of an amended complaint does not
waive any right to challenge the continuing exercise of
subject matter jurisdiction. Indeed, this issue arose after
the filing of the amended complaint. Accordingly, in summary,
the Court finds removal was proper and the issue of whether
the Court should decline to exercise supplemental
jurisdiction and remand this case is appropriately before
case, the Court finds supplemental jurisdiction should be
declined. Supplemental jurisdiction is a doctrine of
discretion, not of right. Hubbard v. Oklahoma ex rel.
Oklahoma Dep't of Human Servs., 759 Fed.Appx. 693,
713 (10th Cir. 2018) (citations omitted). Therefore, a
district court may decline to exercise supplemental
jurisdiction in “exceptional cases.” 28 U.S.C.
§ 1367(c)(4). The record shows this is an exceptional
the action now before this court is in its early stages; the
removal was filed on October 11, 2019, less than two months
ago. No scheduling conference has been held or substantive
orders have been issued. The Foreclosure Proceeding, however,
was filed on or about April 24, 2019 and therefore was
pending in state court for about six months before Lender
Defendants removed the matter to this court. In fact, the
record discloses that Magistrate Judge Kelle Thomas was ready
to hear the Foreclosure Proceeding just before this matter
was removed and is well positioned to hear the matter if
remanded now in light of Judge Thomas's familiarity with
the case. Moreover, a C.R.C.P. 120 proceeding is uniquely a
matter of state court procedural and substantive law over
Colorado real property. As such, the Court adheres to the
Tenth Circuit's recognition that federal courts should
“generally decline to exercise supplemental
jurisdiction when no federal claims remain because
‘notions of comity and federalism demand that a state
court try its own lawsuits, absent compelling reasons to the
contrary.'” Brooks v. Gaenzle, 614 F.3d
1213, 1229-30 (10th Cir. 2010) (quoting Ball v.
Renner, 54 F.3d 664, 669 (10th Cir. 1995)). The Court
finds no such reasons here.
final issue remains - whether the Court should dismiss
without prejudice or remand. Plaintiffs sought remand under
28 U.S.C. § 1447(c) (which applies where the court lacks
subject matter jurisdiction) but, as Lender Defendants
contend, the jurisdictional issue here is more properly
considered under 28 U.S.C. § 1367(c) (which applies
where the court declines to exercise supplemental
jurisdiction). Thus, the Court may either remand the claims
to the state court or dismiss them. Thompson v. City of
Shawnee, 464 Fed.Appx. 720, 726 (10th Cir. 2012) (citing
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 354,
357 (1988) and Robles v. City of Fort
Wayne, 113 F.3d 732, 738 (7th Cir. 1997)). In the
interest of judicial economy and to avoid any undue prejudice
to the parties, such as delay in this proceeding, the Court
finds remand is appropriate.