United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court upon sua sponte review of pro
se Plaintiff Patricia Reed's Complaint, filed on May 5,
2017. (Doc. # 1). For the reasons that follow, the Court
dismisses the Complaint and grants Reed leave to file an
amended complaint by June 8, 2017.
initiated this action on May 5, 2017, against Defendants U.S.
Bank National Association, Ocwen Loan Servicing, LLC,
Mortgage Electronic Registrations Systems, Inc. (MERS),
American Brokers Conduit, and “Does 1 through 10
inclusive.” (Doc. # 1). The Complaint references
numerous state and federal statutes but only lists two causes
of action for (1) Cancellation and Expungement of an
Instrument (“Assignment of Mortgage”), seeking
cancellation and expungement of the mortgage recorded with
the Sarasota County Recorder's Office; and (2)
Declaratory Relief, seeking a declaration that the mortgage
on file with the county recorder is voidable. (Id.
at 41-42). Reed also filed an additional memorandum of law in
support of her Complaint, including excerpts from various
statutes and consent orders entered between Ocwen, U.S. Bank,
and MERS and the Comptroller of the Currency of the United
States. (Doc. # 2).
Reed argues her mortgage is voidable and the Defendant
companies “do not have a lawful ownership or a security
interest in [her] home.” (Doc. # 1 at ¶ 14).
The Complaint Does Not Establish the Basis for the
courts are courts of limited jurisdiction. Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). And
“because a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously [e]nsure that jurisdiction exists over a case, and
should itself raise the question of subject matter
jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE
Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).
the district courts have jurisdiction over cases
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. As stated in
Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478
U.S. 804 (1986), “the question of whether a claim
‘arises under' federal law must be determined by
reference to the well-pleaded complaint.” Id.
at 808. The Supreme Court has explained that “[u]nder
the longstanding well-pleaded complaint rule, . . . a suit
arises under federal law only when the plaintiff's
statement of his own cause of action shows that it is based
upon federal law.” Vaden v. Discover Bank, 556
U.S. 49, 60 (2009)(internal citations omitted).
these parameters, the Supreme Court has clarified that a
cause of action can arise under federal law in one of three
ways. Franchise Tax Bd. v. Constr. Laborers Vacation
Tr., 463 U.S. 1, 8 (1983). First, a federal law may
“create the cause of action.” Id. at
8-9. Second, a cause of action may arise where “some
substantial, disputed question of federal law is a necessary
element of one of the well-pleaded state claims.”
Id. at 13. Third, a cause of action may arise where
“a federal cause of action completely preempts a state
cause of action.” Id. at 24. The mere mention
of a federal statute in a complaint does not create federal
question jurisdiction. Hill v. Marston, 13 F.3d
1548, 1550 (11th Cir. 1994). Rather, federal question
jurisdiction requires that a party assert a substantial
federal claim. Hagans v. Lavine, 415 U.S. 528, 536
(1976); see also Baker v. Carr, 369 U.S. 186, 199
(1962)(holding that if jurisdiction is based on a federal
question, the plaintiff must show that he has alleged a claim
under federal law that is not frivolous).
Complaint is unclear regarding the basis for the Court's
exercise of jurisdiction. Although the Complaint references
various federal statutes and states that federal question
jurisdiction exists, neither of the two causes of action is
brought under a federal statute or the United States
Constitution. (Doc. # 1 at ¶ 1). In fact, neither cause
of action states the legal basis for the claim, leaving the
Court to guess what federal statute could form the basis of
the claim. The first cause of action, labeled Cancellation
and Expungement of an Instrument (“Assignment of
Mortgage”), appears to be a state common law claim for
rescission of the mortgage.
the second cause of action seeks declaratory relief, the
Complaint does not state whether Reed is bringing this claim
pursuant to the federal Declaratory Judgment Act. Regardless,
the “Declaratory Judgment Act does not itself confer
jurisdiction upon federal courts.” United States v.
Knowles, -- F. App'x --, No. 16-15080, 2017 WL
1089497, at *1 (11th Cir. Mar. 23, 2017). Rather, it
“allow[s] parties to precipitate suits that otherwise
might need to wait for the declaratory relief defendant to
bring a coercive action.” Household Bank v. JFS
Grp., 320 F.3d 1249, 1253 (11th Cir. 2003)(quotation
omitted). “Thus, in the context of a declaratory
judgment action, we must determine ‘whether, absent the
availability of declaratory relief, the instant case could
nonetheless have been brought in federal court.'”
Knowles, 2017 WL 1089497, at *1 (quoting Stuart Weitzman,
LLC v. Microcomputer Resources, Inc., 542 F.3d 859, 862
(11th Cir. 2008)). Here, Reed seeks a declaration that the
mortgage is voidable. If declaratory relief were unavailable,
the case would involve state law claims brought by Defendants
to foreclose on Reed's property based on their interest
in the mortgage. Thus, Reed's claim for declaratory
relief does not establish this Court's exercise of
federal question jurisdiction.
many of the federal statutes cited throughout the Complaint
do not create private rights of action. For example, 15
U.S.C. § 7003 merely lists the exceptions to 15 U.S.C.
§ 7001, which states contracts should not be denied
legal effect because an electronic signature of record was
used in their formation. 15 U.S.C. §§ 7001, 7003.
Reed also quotes a criminal statute, 18 U.S.C. § 1021,
which criminalizes the false certification of unrecorded
property conveyances by an officer or other person authorized
by any law of the United States to record a conveyance of
real property. (Doc. # 1 at 16). But, this is a civil case -
not a criminal action. See Fisher v. Conseco Fin.
Co., No. 3:07CV266/RV/MD, 2007 WL 3012881, at *3 (N.D.
Fla. Oct. 12, 2007)(“Rarely is there a private right of
action under a criminal statute.” (citing Chrysler
Corp. v. Brown, 441 U.S. 281, 316 (1979))).
also has not identified what substantial question of federal
law, if any, is a necessary element of her claims. A question
of federal law is substantial if “the vindication of a
right under state law necessarily turn[s] on some
construction of federal law.” Merrell Dow, 478 U.S. at
808-09 (quoting Franchise Tax Bd., 463 U.S. at 9); see also
Templeton Bd. of Sewer Comm'rs., 352 F.3d at 38 (noting
that even where the federal law invoked does not create a
private right of action, “when the interpretation of
federal law is outcome-determinative, subject matter
jurisdiction may be properly exercised”). Reed seems to
invoke numerous federal statutes and Defendants' prior
consent orders merely to accuse Defendants of wrongful
mortgage handling ...