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Fiegel v. Wooten

United States District Court, M.D. Florida, Orlando Division

June 21, 2018

DONALD FIEGEL and NANCY FIEGEL, Plaintiffs,
v.
ERIC WOOTEN and COLENNA KONKLE, Defendants.

          REPORT AND RECOMMENDATION

          THOMAS B. SMITH UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is pro se Defendants Eric Wooten and Colenna Konkle's Motion for Leave to Proceed in Forma Pauperis (Doc. 4). There are multiple problems with this case. Here, I focus solely on the Court's lack of jurisdiction, and respectfully recommend that the case be REMANDED for lack of jurisdiction.

         Background

         On May 9, 2018, Plaintiffs Donald and Nancy Fiegel filed a complaint in county court to evict Defendants and for damages for nonpayment of rent (Doc. 1-2 at 1). Plaintiffs amended their complaint on May 11, 2018 (Doc. 1-2 at 26; Doc. 2). On May 18, 2018, Defendants filed a pro se answer in county court (Doc. 1-2 at 43; Doc. 3). They sought dismissal based on a defective 3 day notice and asked the court to “set a hearing to determine rent as rent was swapped for work at premises.” (Id.). On June 15, 2018, Defendants filed a Notice of Removal here (Doc. 1), removing this landlord-tenant dispute to this Court. Defendants seek to proceed as paupers (Doc. 4).

         Discussion

         Federal court removal is governed by 28 U.S.C. § 1441(a), which states 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 provides:

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 shorter.

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 become removable.

28 U.S.C.§ 1446 (b)(3).

         Removal statutes are 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 In s . C o ., 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.

         Defendants assert that this Court has federal question jurisdiction under 28 U.S.C. § 1441, due to “Federal Fair Housing, ” and diversity jurisdiction under § 1332(a), “as Plaintiff and Defendants live in different States.” Neither claim has merit.

         According to Defendants, federal question jurisdiction is present because “Plaintiff[s] knowing[ly] leased a house with violation in the Fair housing act after being notified of the houses deficienc[ies]in a counter claim during a[n] eviction suit in 2018-2018.” (Doc. 1 at 1). Assuming the truth of this statement, it does not establish federal question jurisdiction for purposes of removal, as removal jurisdiction is determined “based on the plaintiff's pleadings at the time of removal.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997). “[A] defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case ...


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