Filed U.S. Court of Appeals Eleventh Circuit SEP 07, 2011 John Ley Clerk

FOR THE ELEVENTH CIRCUIT COURT OF APPEALS U.S. ________________________ ELEVENTH CIRCUIT No.
11-10978 Non-Argument Calendar ________________________

SEP 07, 2011 JOHN LEY CLERK
D.C. Docket No. 1:09-cv-02355-CAP WEKESA O. MADZIMOYO,
su re
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., f.k.a. The Bank of New York Trust Company, N.A., JP MORGAN CHASE BANK, N.A., GMAC MORTGAGE, LLC, MCCURDY & CANDLER, LLC, ANTHONY DEMARLO, Attorney,
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versus
________________________
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Appeal from the United States District Court for the Northern District of Georgia ________________________ (September 7, 2011)
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Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
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FILED
IN THE UNITED STATES COURT OF APPEALS
Plaintiff-Appellant,
Defendants-Appellees.
[DO NOT PUBLISH]
PER CURIAM: Wekesa Madzimoyo, proceeding pro se, appeals the district courts
judgment on the pleadings in favor of the defendants. Because we conclude that the district court lacked removal jurisdiction, we vacate and remand.
In July 2009, Madzimoyo filed an emergency petition in state court seeking a temporary restraining order (TRO) to stop foreclosure proceedings on his home
by defendants Bank of New York Mellon Trust Company, JP Morgan Chase Bank,
none of the defendants was the original lender and there was no evidence that the original lender had transferred its rights to any defendant. In support of his petition, Madzimoyo submitted correspondence sent to the defendants in which he
referenced the Fair Debt Collection Practice Act (FDCPA) and Regulation Z, the Truth-in-Lending regulations. The state court issued the TRO and scheduled a hearing on the petition to stop the foreclosure. The day before the scheduled hearing in state court, the defendants removed the petition to federal district court in the Northern District of Georgia, asserting federal-question jurisdiction because Madzimoyo had alleged violations of the
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FDCPA and Regulation Z. Madzimoyo moved to remand to state court, disputing
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sought to verify their rights over the mortgage. Some of the correspondence
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McCurdy & Candler, and attorney Anthony DeMarlo. According to the petition,
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that he raised any basis for federal jurisdiction. The magistrate judge denied the motion to remand, finding that
Madzimoyos petition raised federal questions under the FDCPA and Regulation Z. The defendants then moved for judgment on the pleadings. In a brief in
support of the motion, the defendants argued that the FDCPA and Regulation Z
claims failed because Madzimoyo had not alleged any violation of these statutes. The magistrate judge recommended that the motion for judgment on the
Madzimoyos objections, and granted judgment on the pleadings. This appeal followed.
On appeal, both parties address the merits of the order granting judgment on
Madzimoyos action. Nevertheless, we are obliged to notice any lack of jurisdiction regardless of whether the question is raised by the parties themselves. Edge v. Sumter Cnty. Sch. Dist., 775 F.2d 1509, 1513 (11th Cir. 1985). We review questions of subject-matter jurisdiction de novo. Romero v. Drummond Co., 552 F.3d 1303, 1313 (11th Cir. 2008). We consider sua sponte whether the district court had removal jurisdiction. Cotton v. Mass. Mut. Life Ins.
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Co., 402 F.3d 1267, 1280 (11th Cir. 2005).
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the pleadings, and there is no discussion of the district courts jurisdiction over
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pleadings be granted. The district court adopted the recommendation, over
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Under the removal statute: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 28 U.S.C. 1441(b). In other words, to be removable on federal-question
jurisdiction grounds, the case must arise under federal law. See Merrell Dow
complaint rule instructs that a case does not arise under federal law unless a federal question is presented on the face of the plaintiffs complaint. Id. at 808; Kemp v. Intl Bus. Mach. Corp., 109 F.3d 708, 712 (11th Cir. 1997) (citing
A federal question is presented by the complaint when the suit relies on a federal cause of action or where the vindication of a right under state law necessarily turned on some construction of federal law. See Merrell Dow, 478 U.S. at 808. Under this latter analysis, federal question jurisdiction should be narrowly construed. See id. at 810-14. [T]he mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction,
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even where the interpretation of federal law may constitute an element of the state
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Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 11 (1983)).
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Pharm. Inc. v. Thompson, 478 U.S. 804, 807-08 (1986). The well-pleaded
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cause of action. Id. at 813. More recently, the Supreme Court fashioned another test for deciding whether federal courts should exercise federal question jurisdiction over removed state court proceedings: does a state-law claim
necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. Grable & Sons Metal
Prods., Inc. v. Darue Engg & Mfg., 545 U.S. 308, 314 (2005). If the plaintiff
will appear in the complaint that could satisfy the well-pleaded complaint rule, and the case may not be removed to federal court. Kemp, 109 F.3d at 712. Upon review of the record, we conclude that the district court should not
Although Madzimoyos petition referenced federal laws in passing, none of his causes of action relied on even the interpretation of federal law. Rather, Madzimoyo merely asserted that he requested his loan information from the mortgage companies in accordance with federal law to show that he had acted diligently and merited state relief. Accordingly, we vacate the judgment of the district court and remand with instructions that the district court remand the
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proceeding to the state court. VACATED AND REMANDED.

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have exercised federal-question jurisdiction upon the removal of this case.
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elects to bring only state law causes of action in state court, no federal question
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Filed U.S. Court of Appeals Eleventh Circuit SEP 07, 2011 John Ley Clerk

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FOR THE ELEVENTH CIRCUIT COURT OF APPEALS U.S. ________________________ ELEVENTH CIRCUIT No.

11-10978 Non-Argument Calendar ________________________

D.C. Docket No. 1:09-cv-02355-CAP WEKESA O. MADZIMOYO,

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

IN THE UNITED STATES COURT OF APPEALS

[DO NOT PUBLISH]

FDCPA and Regulation Z. Madzimoyo moved to remand to state court, disputing

Co., 402 F.3d 1267, 1280 (11th Cir. 2005).

pleadings be granted. The district court adopted the recommendation, over

proceeding to the state court. VACATED AND REMANDED.

have exercised federal-question jurisdiction upon the removal of this case.

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