United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE.
cause is before the Court on ECF No. 1, Defendant's
Notice of Removal of Foreclosure Proceeding to Federal Court
With Memorandum of Law Regarding the Constitutional Right to
Privacy, and ECF No. 5, Defendant's “Motion to Show
proceeding pro se, filed a Notice of Removal on June
13, 2018, removing to this Court a state-court foreclosure
action filed in the Circuit Court of the Fourteenth Judicial
Circuit, in and for Jackson County, Florida. ECF No. 1. A
review of the state-court record reveals that the state-court
foreclosure action was filed on December 16, 2015. See
SunTrust Bank v. Stripling, Case No. 15000814CAAXMX
(Fla. Cir. Ct.).
initial review of Defendant's Notice of Removal, the
Court noted multiple deficiencies and problems with the
removal. First, as the Court noted, Defendant failed to
follow the statutory requirements for removing a case to
federal court. For example, Defendant failed to attach all
the pleadings and orders from the underlying state-court
case. See 28 U.S.C. § 1446(a) (“A
defendant . . . desiring to remove any civil action from a
State court shall file . . . a notice of removal signed
pursuant to Rule 11 of the Federal Rules of Civil Procedure
and containing a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and
orders served upon such defendant.”).
the Court noted that Defendant's Notice of Removal was
untimely. Removal of an action must be filed within thirty
days after receipt by the defendant of the initial pleading.
See 28 U.S.C. § 1446(b); Bailey v. Janssen
Pharm., Inc., 536 F.3d 1202, 1204-05 (11th Cir. 2008).
According to the state-court docket, Defendant was served in
2016-more than two years ago. See SunTrust Bank v.
Stripling, Case No. 15000814CAAXMX (Fla. Cir. Ct.). The
deadline for filing a notice of removal, therefore, has long
the Court noted that, based upon Defendant's Notice of
Removal, the Court does not have subject matter jurisdiction
over this case. Plaintiff failed to allege that any federal
question was raised in the foreclosure complaint. Federal
question jurisdiction is determined based upon the claims in
the complaint and not by any defenses or counterclaims. Thus,
to the extent Defendant is attempting to remove the case
based on federal claims in her defense of the foreclosure
action, she cannot do so.
the fundamental problem with the removal is that Defendant
appears to be a citizen of Florida as reflected in her notice
of removal in which she listed her current residence in
Panama City, Florida. While residence and citizenship are not
the same in all cases, it appears that Defendant is a Florida
citizen since she is contesting a residential foreclosure on
her Florida home. Removal of a state court action to federal
court is limited to out-of-state citizens. Florida defendants
are not permitted to remove an action unless a federal
question is raised in the complaint.
the Court could have remanded the action based upon the
notice of removal, the Court did not do so and instead
entered an order to show cause to give Defendant an
opportunity to explain why the case was removed properly and
to explain why the Court has subject matter jurisdiction. ECF
response to the Court's order to show cause, Defendant
filed the “Motion to Show Cause, ” ECF No. 5,
which the Court construes as her response to the Court's
order to show cause. In her response, Defendant does not
argue that her removal was proper or that this Court has
subject matter jurisdiction over her case. Instead, she
alleges that she was never served by SunTrust Bank in the
state-court case (which makes no sense because she has now
tried to remove that case to federal court), that she has
been significantly disabled during the pendency of the
state-court case, and that she offered to settle with
SunTrust Bank for the amount of $30, 000, but SunTrust
refused the payment. None of these allegations address the
untimeliness of the removal, contest the fact that she is a
Florida defendant who improperly removed the case or show
that this Court has subject matter jurisdiction over this
it is respectfully RECOMMENDED:
case should be remanded to the Circuit Court for the
Fourteenth Judicial Circuit in and for Jackson County,
Florida and then should be closed.
TO THE PARTIES
to these proposed findings and recommendations must be filed
within fourteen (14) days after being served a copy thereof.
Any different deadline that may appear on the electronic
docket is for the court's internal use only, and does not
control. A copy of objections shall be served upon all other
parties. If a party fails to object to the magistrate
judge's findings or recommendations as to any particular
claim or issue contained in a report and recommendation, that
party waives the right to challenge on ...