United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Federal National Mortgage
Corporation's Motion to Remand. (Doc. 10).
Defendants Robert T. Wilson, Sr. and Leslie Wilson, appearing
pro se, have moved to Strike Plaintiff's Motion
to Remand (Doc. 14), which the Court construes as
their opposition to Plaintiff's motion. They have also
moved to amend the Complaint (Doc. 13), to which
Plaintiff has not responded. For the following reasons, the
Court grants Plaintiff's motion to remand and denies
Defendants' motion to amend the Complaint as moot.
mortgage foreclosure action started over five years ago when
Defendants defaulted on their mortgage. Plaintiff sued them
in Florida state court and received a final judgment in its
favor. (Doc. 10-5). Defendants appealed but lost.
(Doc. 10-7). Facing an imminent foreclosure sale,
Defendants removed the case to this Court. (Doc. 1).
As best the Court can tell, Defendants invoke the Court's
federal question jurisdiction as the basis for removal.
Plaintiff moves, however, to remand the case to the state
courts have original jurisdiction over all civil actions
arising under federal laws. 28 U.S.C. §
1331. If a case over which district courts have
original jurisdiction is filed in state court, the defendant
may remove it to federal court. 28 U.S.C. § 1441(a). A
defendant must remove a case “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.”
28 U.S.C. § 1446(b)(1). The thirty-day period is
strictly construed. See Snapper, Inc. v.
Redan, 171 F.3d 1249, 1253 (11th Cir. 1999) (stating
failure to comply with the statutory requirements for removal
renders removal “defective” and justifies a
removing defendant bears the burden of proving proper federal
jurisdiction.” Leonard v. Enter. Rent a Car,
279 F.3d 967, 972 (11th Cir. 2002). “Thus, to meet
their burden, the defendants must show that the
plaintiffs' complaint, as it existed at the time of
removal, provides an adequate basis for the exercise of
federal jurisdiction.” Adventure Outdoors, Inc. v.
Bloomberg, 552 F.3d 1290, 1295 (11th Cir. 2008). Courts
narrowly construe removal jurisdiction, and “all doubts
about jurisdiction should be resolved in favor of remand to
state court.” Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 411 (11th Cir. 1999).
argue the Notice of Removal fails to establish how this Court
has subject matter jurisdiction. According to the
“Complaint” Defendants attached to their Notice
of Removal (Doc. 2), it appears they are claiming federal
question jurisdiction by asserting the foreclosure action
violates the Fair Debt Collection Practices Act
(“FDCPA”). This is problematic for several
reasons. First, Plaintiff neither alleged a violation of the
FDCPA nor any other federal law in the foreclosure complaint.
See Blab T.V. of Mobile, Inc. v. Comcast Cable
Commc'ns, 182 F.3d 851, 854 (11th Cir. 1999)
(“A case thus may be removed based on federal question
jurisdiction ‘only when the plaintiff's statement
of his own cause of action shows that it is based' on
federal law.” (citation omitted)). Without showing the
foreclosure action presented a federal question, Defendants
have no basis to remove this case. Second, even considering
Defendants' improper “Complaint, ” it
contains no cause of action under the FDCPA. Defendants do
nothing more than re-litigate issues from the foreclosure
action. Third, Defendants cannot plead the FDCPA violation as
a counterclaim to trigger jurisdiction. Holmes Grp., Inc.
v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831
(2002) (“[A] counterclaim - which appears as part of
the defendant's answer, not as part of the
plaintiff's complaint - cannot serve as the basis for
‘arising under' jurisdiction.”).
only is Defendants' removal jurisdictionally defective,
but it is also procedurally defective. Defendants failed to
timely remove this case. They filed the Notice of Removal
over five years after being served with the foreclosure
complaint. See HSBC Bank USA, N.A. v.
Anderson, No. 6:12-cv-Orl-22DAB, 2012 WL 4896686, at *2
(M.D. Fla. Sept. 24, 2012) (“To the extent [d]efendants
purport to remove the original mortgage foreclosure
complaint, such removal is untimely as it occurred years
after the commencement of the action.”).
jurisdictional and procedural defectives are not enough, the
Rooker-Feldman also bars Defendants' removal.
“The Rooker-Feldman doctrine makes clear that
federal district courts cannot review state court final
judgments because that task is reserved for state appellate
courts or, as a last resort, the United States Supreme
Court.” Casale v. Tillman, 558 F.3d 1258, 1260
(11th Cir. 2009). Defendants' removal falls squarely
under the Rooker-Feldman doctrine. They appear to
use hypothetical FDCPA claims to attack the state court's
final foreclosure judgment in an attempt to re-litigate the
foreclosure action and to stop the foreclosure sale.
See Nicholson v. Shafe, 558 F.3d 1266, 1271
(11th Cir. 2009) (stating federal district courts have
“no authority to review final judgments of a state
court” (internal quotations omitted)). Defendants'
bid to move the foreclosure action to this forum, after
unsuccessfully fighting it in state court for several years,
Defendants' Notice of Removal fails to show the Court has
subject matter jurisdiction, remand is required. Without
jurisdiction, the Court cannot grant Defendants' Motion
to Amended Complaint (Doc. 13). It thus will deny
Defendants' motion as moot.
it is now
Plaintiff Federal National Mortgage Corporation's Motion
to Remand. (Doc. 10) is GRANTED.
Defendants' Motion to Strike Plaintiffs' Motion for
Remand (Doc. 14) is DENIED.
Clerk of Court is DIRECTED to transmit a
certified copy of this Order to the Clerk of the Circuit
Court of the Twentieth Judicial ...