UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

FILED 

RICHARD W. NAGE L 

CLERK OF COURT 

201 8 JUL 25 PM 4: 46 

U.S. D!S TRICT COURT 

SOUTHERN DtST OHIO 

U.S. BANK NATIONAL ASSOCIATION, 

Plaintiff, 

Case No. 1: 18_cv-485VEST DI V CINC INNATI 

vs. 

ROBERT SCOTT MERUSI, et al., 

Defendants. 

Black, J. 

Litkovitz, M.J. 

REPORT AND 

RECOMMENDATION 

Defendant Robert Scott Merusi filed a pro se notice of removal of a state court civil 

action to the United States District Court. (Doc. 1, Att. 1 ). By separate Order, Mr. Merusi was 

granted leave to proceed informa pauperis pursuant to 28 U.S.C. § 1915. This matter is before 

the Court for a sua sponte review of Mr. Merusi' s notice of removal, which the Court construes 

as a petition for removal of a state court action to this federal court, to determine whether the 

Court has jurisdiction over this matter. See 28 U.S.C. § 1915(e)(2)(B); Fed. R. Civ. P. 12(h)(3). 

The removal petition alleges that Mr. Merusi is a party-defendant to a state court 

mortgage foreclosure action initiated in the Hamilton County, Ohio Court of Common Pleas. 

The attachments to the petition reflect that U.S. Bank National Association filed a complaint in 

foreclosure against Mr. Merusi and others on April 15, 2016. It appears the state court granted 

default judgment for U.S. Bank National Association and granted a decree in foreclosure. A 

Sheriffs Sale has been scheduled for July 26, 2018. On July 18, 2018, Mr. Merusi filed his 

petition for removal in this federal court. 

Removal is governed by 28 U.S.C. § 1441 which provides in relevant part: " [A]ny civil 

action brought in a State court of which the district courts of the United States have original 

jurisdiction, may be removed by the defendant or the defendants, to the district court of the 

Case: 1:18-cv-00485-TSB-KLL Doc #: 5 Filed: 07/25/18 Page: 1 of 5 PAGEID #: 219
United States for the district and division embracing the place where such action is pending." 

28 U.S.C. § 1441(a). Thus, "[o]nly state-court actions that originally could have been filed in 

federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 

482 U.S. 386, 392 (1987). The defendant carries the burden of showing that removal is proper 

and that the federal court has original jurisdiction to hear the case. See Village of Oakwood v. 

State Bank and Trust Co., 539 F.3d 373, 377 (6th Cir. 2008); Ahearn v. Charter Township of 

Bloomfield, 100 F .3d 451, 453-54 (6th Cir. 1996). The removal statute is to be strictly 

construed and where jurisdiction is in doubt, the matter should be remanded to the state court. 

See Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999). 

It appears Mr. Merusi seeks to remove the state court action to this federal court based on 

diversity and federal question jurisdiction. (Doc. 1-1 at 3-11 ). 

The Court cannot discern a basis for federal question jurisdiction in this matter. District 

courts have original federal question jurisdiction over cases "arising under the Constitution, laws, 

or treaties of the United States." 28 U.S.C. § 1331. In determining whether an action has been 

properly removed to federal court, the Court must examine the face of the state court plaintiffs 

well-pleaded complaint. Under the well-pleaded complaint rule, district courts have federal 

question removal jurisdiction over "only those cases in which a well-pleaded complaint 

establishes either that federal law creates the cause of action or that the plaintiffs right to relief 

necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd 

v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). In other words, a case arises 

under federal law when an issue of federal law appears on the face of the plaintiffs well-pleaded 

complaint. Caterpillar, 482 U.S. at 392; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 

( 1987). The plaintiff is the master of the claim and may avoid federal jurisdiction by exclusive 

Case: 1:18-cv-00485-TSB-KLL Doc #: 5 Filed: 07/25/18 Page: 2 of 5 PAGEID #: 220
reliance on state law. See Caterpillar, 482 U.S. at 392. In addition, "it is now settled law that a 

case may not be removed to federal court on the basis of a federal defense ... even if the defense 

is anticipated in the plaintiffs complaint, and even if both parties concede that the federal 

defense is the only question truly at issue." Caterpillar, 482 U.S. at 393 (emphasis in the 

original) (citing Franchise Tax Board, 463 U.S. at 12). See also Beneficial National Bank v. 

Anderson, 539 U.S. 1, 6 (2003); Metropolitan Life, 481 U.S. at 63; Chase Manhattan Mortgage 

Corp., 507 F.3d at 915. 

Mr. Merusi has failed to establish this Court has original federal question jurisdiction 

over this case. The state court complaint attached to the notice of removal does not show this 

case arises under the Constitution or laws of the United States. Mr. Merusi appears to contend 

that U.S. Bank National Association violated his rights under the United States Constitution and 

the Fair Debt Collection Practices Act in connection with the state court foreclosure proceeding. 

However, even if Mr. Merusi asserts a federal defense to the state court foreclosure action, the 

existence of a defense based upon federal law is insufficient to support removal jurisdiction. 

Franchise Tax Board, 463 U.S. at 8-12; Chase Manhattan Mortgage Corp., 507 F.3d at 914-15. 

Therefore, Mr. Merusi has failed to meet his burden of showing federal question jurisdiction in 

this matter. 

In addition, Mr. Merusi may not remove the state court action based on the Court's 

diversity jurisdiction under 28 U.S.C. § 1332. Removal based on diversity of citizenship is 

proper only where the defendants are not citizens of the forum state. The removal statute 

provides that a civil action "may not be removed if any 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 )(2). Even if there is complete diversity among the parties, the presence of a properly 

Case: 1:18-cv-00485-TSB-KLL Doc #: 5 Filed: 07/25/18 Page: 3 of 5 PAGEID #: 221
joined and served resident defendant bars removal. Chase Manhattan Mortgage Corp. v. Smith, 

507 F.3d 910, 914 (6th Cir. 2007); Federal National Mortgage Association v. LeCrone, 868 F.2d 

190, 194 (6th Cir. 1989). Because Mr. Merusi is an Ohio citizen, removal on the basis of 

diversity jurisdiction is barred under § 1441 (b ). 

Accordingly, the Court lacks subject matter jurisdiction over this case. 

IT IS THEREFORE RECOMMENDED: 

1. Mr. Merusi' s petition for removal of a state court action to this federal court should be 

DENIED. 

2. This matter should be DISMISSED from the docket of the Court. 

3. This matter should be REMANDED to the state court. See 28 U.S.C. § 1447(c). 

4. The Court should certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an 

appeal of this Order would not be taken in good faith and therefore deny Mr. Merusi leave to 

appeal in forma pauper is. Mr. Merusi should be advised that he remains free to apply to 

proceed informa pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 

803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277 

(6th Cir. 1997). 

Date: 'liiA 5:/; --

United States 

ovMagistrate ~ Judge 

4 

Case: 1:18-cv-00485-TSB-KLL Doc #: 5 Filed: 07/25/18 Page: 4 of 5 PAGEID #: 222
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

U.S. BANK NATIONAL ASSOCIATION, 

Plaintiff, 

vs. 

ROBERT SCOTT MERUSI, et al., 

Defendants. 

NOTICE 

Case No. 1: 18-cv-485 

Black, J. 

Litkovitz, M.J. 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS after 

being served with a copy thereof. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) of the 

R&R objected to, and shall be accompanied by a memorandum oflaw in support of the 

objections. A party shall respond to an opponent's objections within FOURTEEN DAYS after 

being served with a copy of those objections. Failure to make objections in accordance with this 

procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

5 

Case: 1:18-cv-00485-TSB-KLL Doc #: 5 Filed: 07/25/18 Page: 5 of 5 PAGEID #: 223