United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
case is before the Court on Plaintiff As Arete LLC's
(“Arete”) Motion for Remand to State Court (Doc.
2). Defendant Joanne Shapiro (“Shapiro”) filed an
Opposition to Motion to Remand (Doc. 4). This foreclosure
action was originally filed in the Circuit Court of the
Fourth Judicial Circuit in and for Duval County, Florida on
November 4, 2015. (Doc. 2-1 at 2). On July 28, 2017- more
than twenty months later-Shapiro filed a notice to remove the
action to federal court. (Doc. 1).
Notice of Removal, Shapiro alleges that this Court has
jurisdiction because she is going to file a separate action,
alleging violations of 42 U.S.C. § 1983 and Federal Rule
of Civil Procedure 5.1. (Doc. 1 at 3-4). On October 27, 2017,
Shapiro filed a pleading titled: “Verified Complaint
for Damages and Equitable Relief and for Immediate Ex Parte
Application for Temporary Restraining Order And For Order to
show Cause For Preliminary Injunction.” (hereinafter
“Oct. 27th Pleading, ” which the Court now files
as Doc. 12). In the Oct. 27th Pleading, Shapiro alleges
discriminatory lending practices, unconstitutional statutory
schemes, lack of standing, corrupt judicial procedures, and
others. Additionally, she alleges that this Court has
jurisdiction because the parties are diverse and because she
has alleged Constitutional and federal statutory violations.
(Doc. 12 at 2, 5-6, 11-12). For the reasons set forth below,
Shapiro is incorrect in her jurisdictional arguments and this
matter should be remanded to state court.
to the federal courts is governed by Title 28 United States
Code section 1441, which states in relevant part:
(a) Generally.--Except 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.
(b) Removal based on diversity of
(2) A civil action otherwise removable solely on the basis of
the jurisdiction under section 1332(a) of this title 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. Couched in § 1441(a) is the
“well-pleaded complaint” rule, which states that
a “federal defense to a state law claim generally is
insufficient to satisfy the requirements of 28 U.S.C. §
1331.” Stern v. Int'l Bus. Machines Corp.,
326 F.3d 1367, 1370 (11th Cir. 2003). To remove a case from
state court on the basis of a federal question, such federal
question must be presented on the face of the plaintiff's
remand is appropriate because there are no jurisdictional
grounds for removal. It appears that Shapiro is a resident of
Neptune Beach, Florida. (See Doc. 4 at 7). Arete
alleges that it properly joined and served Shapiro as a
defendant in this action. (Doc. 2 at 1-2); see
§ 1441(b)(2); see also Wilson v. Republic Iron &
Steel Co., 257 U.S. 92, 97 (1921) (stating that the
party seeking removal has the burden of proving that removal
is proper). As Shapiro is the defendant and a resident of
Florida, removal pursuant to 28 U.S.C. § 1332 is
unauthorized. See § 1441(b)(2).
is also not appropriate as there is no basis for federal
question jurisdiction on the face of the complaint. See
Stern, 326 F.3d at 1370; Verified Complaint, As
Arete LLC v. Shapiro, No. 16-2015-CA-007059 (Fla. 4th
Cir. Ct. Nov. 4, 2015). Although Shapiro may have federal
question claims against Arete and others, because such claims
do not appear on the face of the complaint they do not
provide a basis for removal. See Stern, 326 F.3d at
1370. Therefore, this action should be remanded to state
titled as a verified complaint, the Oct. 27th Pleading is
more in the nature of a defense or counterclaim. Shapiro
argues that the Oct. 27th Pleading provides jurisdiction to
remove the state foreclosure action, but it does not because,
among other reasons, it was not filed until after removal.
(Doc. 4 at 4).
it is hereby
Plaintiff's Motion for Remand to State Court ...