The opinion of the court was delivered by: Joan B. Gottschall, United States District Judge
Plaintiff Chad Catuara has sued the law firm of Heavner, Handegan, Scott & Beyers ("Heavner"), five of the firm's lawyers, Washington Mutual Bank, F.A. ("Washington Mutual"), and five of the bank's officers, alleging violations of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., as well as several other federal statutes, and various state statutes. Before the court is Catuara's motion to stay the mortgage foreclosure case that is pending against him in the Circuit Court of Cook County, Case No. 02 CH 01197.*fn1 As explained below, the court has no authority to stay the state court proceeding, and therefore denies Catuara's motion.
Under the Anti-Injunction Act, 28 U.S.C. § 2283, a federal district court "may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." This Act sets forth "an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of the three specifically defined exceptions." Atlantic Coast Line R.R. Co. v. Bhd of Locomotive Eng'rs, 398 U.S. 281, 286 (1970). These exceptions "are narrow and are not to be enlarged by loose statutory construction." Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988) (citation and internal quotation marks omitted). Further, "[a]ny doubt must be resolved against the finding of an exception to § 2283." Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 643 (1977). There is no doubt here: none of the limited exceptions to § 2283 applies to Catuara's case.*fn2
There is no express act of Congress authorizing an injunction here. According to the Supreme Court, to determine whether an express act of Congress authorizes an injunction, the test "is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of the state court proceedings." Mitchum v. Foster, 407 U.S. 225, 238 (1972). The FDCPA fails this test because it creates no right to equitable relief for private plaintiffs. 15 U.S.C. § 1692k; Sibley v. Fulton DeKalb Collection Serv., 677 F.2d 830, 834 (11th Cir. 1982); Zanni v. Lippold, 119 F.R.D. 32, 33 (N.D.Ill. 1988).
The "necessary in aid of jurisdiction" exception does not apply either. First, as defendants correctly point out, Congress added the phrase "in aid of its jurisdiction" to § 2283 "to make clear the recognized power of the Federal courts to stay proceedings in State cases removed to the district courts." 28 U.S.C. § 2283, Historical & Statutory Notes. Catuara has not removed the state court proceeding to this court, nor can he attempt to do so now, despite his argument to the contrary. Catuara argues that when he commenced this proceeding on January 24, 2003, he thought he was removing the case to federal court, and contends he should be allowed to correct his procedural error by filing an amended complaint. But it is far too late to remove the state court case to federal court. As acknowledged by Catuara in his complaint, the state court proceeding commenced in January 2002. He was served with the summons and foreclosure complaint on January 27th. Under 28 U.S.C. § 1446(b), he had thirty days from the date he was served to file a notice of removal. Even if his initial filing in federal court were a notice of removal, he missed the deadline by nearly eleven months.*fn3
Second, the generally accepted understanding is that the "necessary in aid of jurisdiction" exception incorporates a historically recognized exception relating to in rem jurisdiction, Charles Alan Wright, et al., 17 Fed. Practice & Procedure, § 4225 (2d ed. 1988), and thus applies only "when a state court proceeding threatens to dispose of property which forms the basis for federal in rem jurisdiction." Pridgen v. Andresen, 891 F. Supp. 733, 738 (D.Conn. 1995). Catuara's federal action is not an in rem proceeding, however. Even if it were, the court could not enjoin the state court proceeding because the state court obtained custody of the res first. Wright, supra, at § 4225 ("If the state court has first obtained custody of the res, the federal court cannot enjoin the state proceeding."); see First Nat'l Bank & Trust Co. v. Vill. of Skokie, 173 F.2d 1, 4-5 (7th Cir. 1949) (district court lacked power to enjoin mortgage foreclosures pending in state court).
The last exception, allowing a court to enjoin a state court proceeding "to protect or effectuate its judgments," is also inapplicable here. This exception, also known as the "relitigation" exception, "applies only to matters already fully adjudicated, and judgments already entered, by a federal court." Attick v. Valeria Assoc., L.P., 835 F. Supp. 103, 115 (S.D.N.Y. 1992). Here, there has been no final adjudication or judgment in the federal case. "It is clear that this exception does not permit a federal court to enjoin state proceedings to protect a judgment that the federal court may make in the future but has not yet made." Wright, supra, at § 4226.
Because none of the exceptions to § 2283 applies here, the court cannot enjoin ...