Bank of America, N.A. v. Pastorelli-Cuseo
3:17-cv-01666
D. Conn.Oct 17, 2017Background
- Bank of America filed a foreclosure action in Connecticut Superior Court against Albert Cuseo III and Melissa Pastorelli-Cuseo in June 2014; an amended complaint was filed in 2015.
- Motions to dismiss by both defendants were denied by the Superior Court in June 2017.
- Albert Cuseo removed the case to federal court in July 2017; Judge Meyer remanded in August 2017 as untimely and lacking subject-matter jurisdiction, and awarded fees to Bank of America.
- The case was returned to state court and trial was set for October 3, 2017.
- On October 3, 2017, Pastorelli-Cuseo filed a second notice of removal; the district court sua sponte remanded based on the law of the case doctrine and ordered Pastorelli-Cuseo to pay Bank of America’s fees and costs for the remand motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second removal was proper despite a prior remand | Bank of America: second removal is barred by prior federal remand and § 1447(d) | Pastorelli-Cuseo: (implicitly) removal proper or permissible despite prior remand; attempted new allegations of misconduct | Court: barred by law of the case and § 1447(d); remand required |
| Whether timely removal or federal jurisdiction exists | Bank of America: no federal question and not timely; diversity barred by in-state defendant under § 1441(b) | Pastorelli-Cuseo: asserted similar grounds as prior removal but added allegations | Court: no new grounds shown; no federal jurisdiction; prior finding stands |
| Whether the court should reconsider prior judge’s remand | Bank of America: prior decision binding; no extraordinary circumstances | Pastorelli-Cuseo: did not identify cogent/compelling reasons to revisit | Court: discretionary doctrine not invoked; no extraordinary circumstances; adhere to prior ruling |
| Entitlement to fees for improper removal | Bank of America: prior removal was frivolous; seeks fees for second removal delay | Pastorelli-Cuseo: removal delayed state proceedings (implicit defense not argued) | Court: awarded Bank of America attorneys’ fees and costs for remand-related filings |
Key Cases Cited
- Christianson v. Colt Indus. Operating Co., 486 U.S. 800 (law of the case governs subsequent stages of same litigation)
- DeWeerth v. Baldinger, 38 F.3d 1266 (law of the case covers issues decided expressly or by necessary implication)
- Rezzonico v. H&R Block, 182 F.3d 144 (law of the case is discretionary but presumes refusal to reopen decided issues)
- DiLaura v. Power Auth., 982 F.2d 73 (doctrine does not strip courts of power to reconsider earlier decisions)
- United States v. Birney, 686 F.2d 102 (courts generally refuse to reopen decided matters)
- Johnson v. Holder, 564 F.3d 95 (sets standards for departing from law of the case: cogent or compelling reasons required)
- United States v. Quintieri, 306 F.3d 1217 (intervening change in law, new evidence, or manifest injustice justify departure)
- N. River Ins. Co. v. Phila. Reins. Corp., 63 F.3d 160 (courts should be loathe to revisit prior decisions absent extraordinary circumstances)
- Midlock v. Apple Vacations W., 406 F.3d 453 (remand order establishes law of the case with respect to removability)