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LLC v. David

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

May 9, 2019

4460 NIRVANA PKWY, LLC, Plaintiff,
v.
AIDA DAVID, JOHN DAVID, AND UNKNOWN TENANTS IN POSSESSION, Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE

         This cause came on for consideration without oral argument on the following motion:

MOTION: APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Doc. No. 2)
FILED: May 6, 2019
THEREON it is RECOMMENDED that the motion be DENIED and the case be REMANDED.

         I. BACKGROUND.

         On April 29, 2019, Plaintiff filed a complaint for tenant eviction against Defendants in the County Court, in and for Osceola County. Doc. No. 1. The Complaint alleges that Plaintiff leased a residential property to Defendants, they failed to pay the full rent when it became due, and $18, 900.00 in rent remains due and owing from Defendants. Doc. No. 1. Plaintiff requests a judgment for possession of the premises. Id. at 2. Defendant John David (“David”) filed an answer and claimed habitability issues because of a high water bill. Doc. No. 1-2.

         On May 6, 2019, David filed a notice of removal pursuant to 28 U.S.C. § 1446(d). Doc. No. 1-3. Defendants offer no jurisdictional basis for the removal. Doc. No. 1-3. On May 6, 2019, David filed a motion to proceed in forma pauperis (the “Motion”) as the removing defendant. Doc. No. 2. The Motion was referred to the undersigned. In the Motion, David states his monthly take-home wages are $5, 000. Id. at 1. David also indicates he has $1, 500.00 in cash or in a checking or savings account. Id. at 3.

         II. THE LAW.

         A. Jurisdiction and Pleading.

         Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, a district court may at any time, upon motion or sua sponte, act to address the potential lack of subject matter jurisdiction in a case. Herskowitz v. Reid, 187 Fed.Appx. 911, 912-13 (11th Cir. 2006) (citing Howard v. Lemmons, 547 F.2d 290, 290 n.1 (5th Cir. 1977)).[1] “[I]t is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Federal courts are courts of limited jurisdiction; therefore, the Court must inquire into its subject matter jurisdiction, even when a party has not challenged it. Id.

         “In a given case, a federal district court must have at least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). The removing party bears the burden of demonstrating federal jurisdiction exists. Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1281 n. 5 (11th Cir. 2001).

         The presence or absence of a federal question is governed under the “well-pleaded complaint” rule, which provides that federal question jurisdiction exists only where a federal question is presented on the face of the state court plaintiff's complaint. See Gully v. First Nat'l Bank, 299 U.S. 109, 112-13 (1936). Diversity jurisdiction exists when the parties are of diverse citizenship and the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a).

         B. Proceeding In ...


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