United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH, United States Magistrate Judge
before the Court is pro se Defendant Deano S. Esposita's
Motion for Leave to Proceed in Forma Pauperis (Doc. 3). There
are multiple problems with this case. Here, I focus solely on
the Court's lack of jurisdiction. Because I find that the
Court does not have jurisdiction, I respectfully recommend
that the case be REMANDED and that
Esposita's motion be DENIED.
SunTrust Bank filed a mortgage foreclosure complaint against
Esposita and other defendants on August 7, 2009 (Doc. 2). The
case proceeded along a tortuous path for years in state court
while Esposita filed for bankruptcy protection in 2011, 2013
and again in 2015. See state court docket and Case No.
6:16-cv-1432-RBD, Doc. 6-1. In papers filed in state court,
Esposita claimed that "on December 9, 2016, Defendant
removed the case to Federal Court." (Doc. 1-2 at
judgment for SunTrust was entered in the state court on
December 12, 2016 (Docs. 1-1 at 54 and 1-2 at 7). Esposita
moved to vacate the judgment, contending that exclusive
jurisdiction was vested in the federal court (Doc. 1-1 at
38). SunTrust also moved to set aside the final judgment and
sale, and asked the state court to assess sanctions against
Esposita (Doc. 1-1 at 64). On June 7, 2017, the state court
judge granted the motion to set aside the judgment and sale,
and directed SunTrust to set its motion for sanctions for
evidentiary hearing (Doc. 1-2 at 10-11). The hearing was
noticed for November 3, 2017. Esposita filed his notice of
removal to this Court on November 2, 2017 (Doc. 1).
alleges due process violations occurring in the state court
and purports to remove "this action" from the
Circuit Court of the Eighteenth Judicial Circuit in and for
Seminole County, Florida based upon federal question
jurisdiction (Doc. 1). He claims that "PlaintiffQ has
already been granted the relief requested and therefore the
removal is not subject to remand based on the what appears on
the face of Plaintiffs complaint." (Doc. 1, ¶ 2).
Going further, Esposita asserts that "Plaintiff's
complaint does not legally exist" and "the current
proceedings taking place in the state court are sham
proceedings, known to Plaintiff to be sham pleadings because
plaintiff already foreclosed on the Property and received
title...." (Id., ¶ 7). No other defendant
has joined in the removal of this case. Esposita seeks to
proceed as a pauper in this Court.
court removal is governed by 28 U.S.C. § 1441(a), which
provides in part that "[e]xcept as otherwise expressly
provided by Act of Congress, any 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 United States for
the district and division embracing the place where such
action is pending." Procedurally, removal is governed by
Title 28 U.S.C. § 1446, as amended by the Federal Courts
Jurisdiction and Venue Clarification Act of 2011 which
1) The notice of removal of a civil action or proceeding
shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based, or within 30 days
after the service of summons upon the defendant if such
initial pleading has then been filed in court and is not
required to be served on the defendant, whichever period is
28 U.S.C. § 1446(b)(1).
3) Except as provided in subsection (c), if the case stated
by the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
28 U.S.C.§ 1446 (b)(3).
statutes are to be strictly construed against removal.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Burns v.
Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)
(“[R]emoval statutes are construed narrowly; when the
parties dispute jurisdiction, uncertainties are resolved in
favor of remand."). See also Univ. of S. Ala, v. Am.
Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)
("[A]ll doubts about jurisdiction should be resolved in
favor of remand to state court."). The removing party
has the burden of proving that federal jurisdiction exists by
a preponderance of the evidence and the removing party must
present facts establishing its right to remove. Williams
v. Best Buy Company. Inc., 269 F.3d 1316, 1319 (11th
Cir. 2001). When the defendant fails to do so, the case must
be remanded. Williams, 269 F.3d at 1321.
§ 1441 speaks to removal of civil "action[s],
" Esposita is not purporting to remove the state court
action; in fact, he specifically disclaims any intent on
removing the state court complaint, but appears to be focused
on unspecified "current proceedings" within the
long pending state court action. The federal courts have
generally construed the phrase "civil action" in
the § 1441 context "to require a suit separate
from, and not ancillary to, a suit in state court."
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