United States District Court, M.D. Florida
C. CONWAY Judge.
cause comes before the Court on Plaintiff Michael
Moecker's motion to remand (Doc. 11) and motion to
dismiss (Doc. 9). The Magistrate Judge issued a Report and
Recommendation (R & R) recommending that the case be
remanded to state court. (Doc. 21). Thereafter, Defendant
Amegy Bank Business Credit (“Amegy”) filed an
Objection (Doc. 22) to the R & R, and Plaintiff responded
in opposition (Doc. 23). For the reasons that follow, the
Court will adopt and affirm the R & R.
the parties do not have objections to the majority of the
background section of the R & R, and because the parties
do not object to the Magistrate Judge's ultimate
recommendation, the Court does not reiterate the complete
factual background, except for a procedural summary of how
this case ended up in federal court after more than twenty
months in state court proceedings. This lawsuit arises out of
multiple agreements between multiple parties, including
Plaintiff's acceptance of an assignment for the benefit
of creditors from a foreclosure law firm and its related
entities (the “Assignors”). (Doc. 11 at 2).
Plaintiff filed sixteen separate petitions commencing
assignments for the benefit of creditors on behalf of the
Assignors in the Ninth Judicial Circuit in and for Orange
County, Florida (the “State Court Assignment
Cases”). (Doc. 2). Because Amegy purchased certain
accounts receivable of the Assignors, Amegy is also a party
in the State Court Assignment Cases. (Id.) The State
Court Assignment Cases involves approximately 1, 750
creditors and over $88 million in claims. (Doc. 11 at 2).
However, while the Assignors are parties to the State Court
Assignment Cases, they are not parties to the present action.
the State Court Assignment Cases, Plaintiff and Amegy have
entered into at least two agreements related to the
assignment estates. (Doc. 2-2; Doc. 5 at 14; Doc. 18 ¶
8). Thereafter, more than twenty months into the State Court
Assignment Cases, Plaintiff filed a supplemental proceeding
complaint against Amegy based on: the agreement between Amegy
and the Assignors; Amegy's claims to the assignment
estates; surcharge; quantum meruit; unjust enrichment;
entitlement to the accounts receivable; and seeking recovery
of expenses incurred. (Doc. 2). On December 28, 2016, Amegy
removed this lawsuit to the Middle District of Florida. (Doc.
1). Following Amegy's removal of Plaintiff's
supplemental proceeding complaint to this Court, Amegy filed
a counterclaim against Plaintiff, which was later
amended. (Docs. 5, 18). Plaintiff then filed a
motion to remand and a motion to dismiss Amegy's
counterclaim. (Docs. 9 and 11). Because the jurisdictional
issues raised in Plaintiff's motion to remand are
dispositive, the Magistrate Judge did not consider the merits
of Plaintiff's motion to dismiss. (Doc. 21 at 6).
Magistrate Judge issued an R & R recommending that the
case be remanded to state court because Plaintiff's
complaint is not a separate civil action within the meaning
of 28 U.S.C. § 1441. (Id. at 12). Rather,
Plaintiff's complaint is supplementary to the State Court
Assignment Cases. (Id.) Additionally, the Magistrate
Judge found that abstention is proper under the
Colorado River Doctrine. (Id. at
12-13). Neither party has objected to these determinations.
Because the undersigned Judge agrees entirely with the
Magistrate Judge's analysis and ultimate recommendation
that remand is proper, the R & R is due to be adopted.
Below, the Court addresses Amegy's narrow objections to
the R & R.
LEGAL STANDARD & DISCUSSION
courts review de novo any portion of a magistrate
judge's disposition of a dispositive motion to which a
party has properly objected. Fed.R.Civ.P. 72(b)(3);
Ekokotu v. Fed. Express Corp., 408 F. App'x 331,
336 n.3 (11th Cir. 2011) (per curiam). The district
judge may reject, modify, or accept in whole or in part the
magistrate judge's recommended disposition, among other
options. Fed.R.Civ.P. 72(b)(3). De novo review of a
magistrate judge's findings of fact must be
“independent and based upon the record before the
court.” LoConte v. Dugger, 847 F.2d 745, 750
(11th Cir. 1988). The district court “need only satisfy
itself that there is no clear error on the face of the
record” in order to affirm a portion of the Magistrate
Judge's recommendation to which there is no timely
objection. Fed.R.Civ.P. 72 advisory committee's note
(1983) (citations omitted); see also Gropp v. United
Airlines, Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993).
filed an objection directed at two statements used by the
Magistrate Judge in the R & R. (Doc. 22). Amegy
acknowledges that neither of these statements are necessary
to the recommendation that this case should be remanded.
(Id. at 3-4). However, Amegy objects out of concern
that these two statements will constitute a concession or
potential waiver. (Id. at 1). The first objected-to
statement in the R & R relates to one of the agreements
entered into between Amegy and Plaintiff during the pendency
of the State Court Assignment Cases:
Amegy and the Assignee entered into an Agreement dated July
7, 2015 (the “ABC Agreement”), which provides,
among other things, that Amegy would pay up to $175, 000 to
the Assignee to defray certain upfront expenses to be
incurred by the Assignors' estates to preserve the value
of accounts receivable for the benefit of Amegy.
(Doc. 21 at 3).
objects to the extent that this statement can be construed to
suggest Amegy's intent in paying up to $175, 000, or that
the purpose of the $175, 000 payment, was to “preserve
the value of accounts receivable for the benefit of
Amegy.” (Doc. 22 at 2-3). The language of the ABC
Agreement provides for a payment up to $175, 000, and both
parties seem to agree on this point. (See Docs. 2-2,
22 at 2, 23 at 2). The parties disagree as to the intent and
purpose of Amegy's payment pursuant to the ABC Agreement.
(See Docs. 22, 23). Because the intent and purpose
of the payment is not necessary to the Magistrate Judge's
analysis and ultimate conclusion that remand is proper, and
because this Court lacks jurisdiction as a result, it is
unnecessary for the Court to determine the intent of
Amegy's payment under the agreement. In an abundance of
caution, and to ensure that the statement does not have a
prejudicial effect on either party, the Court will amend the
Magistrate Judge's statement (Doc. 21 at 3) to provide as
follows: “Amegy and the Assignee entered into an
Agreement dated July 7, 2015 (the “ABC
Agreement”), which provides, among other things, that
Amegy would pay up to $175, 000 to the Assignee.”
Court finds Amegy's second objection to be without merit.
Amegy objects to a footnote in the R & R that states
“[t]o the extent Amegy asserts the same right to
recover funds in state court (through its proofs of claim)
and in federal court, via counterclaim, these claims are
directed against the same collateral and proceeds of that
collateral, all of which is being administered by the state
court.” (Doc. 22 at 3; Doc. 21 at 13 n.10). The
Magistrate Judge's statement relates to whether the
instant action is supplemental to the State Court Assignment
Cases for purposes of a jurisdictional determination. Amegy
argues that its counterclaim is distinct from its claims
against the Assignors and is concerned that this statement
conflates the claims in the counterclaim with Amegy's
proofs of claim filed in the State Court Assignment Cases.
(Doc. 22 at 3-4). The Court fails to see how the Magistrate
Judge's statement can be construed as making a
determination as to the nature and extent of Amegy's
claims in the State Court Assignment Cases or its
counterclaim filed in the ...