United States District Court, M.D. Florida, Tampa Division
G. ANDREW GRACY, Plaintiff,
BASSAM MINAWI, Defendant.
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
cause comes before the Court on a motion filed by Defendant
to proceed in forma pauperis (Dkt. 4) in this
removed action. The Defendant's motion was referred to
the magistrate judge. United States Magistrate Judge Anthony
E. Porcelli recommends that in forma pauperis status
be denied and that Defendant's counterclaim (Dkt. 1-2 at
20-143), the only operative pleading pending in the state
court case at the time of removal, be dismissed for lack of
jurisdiction. Dkt. 6. Defendant filed timely objections.
ruling on a magistrate's report and recommendation, the
Court may “accept, reject or modify in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1); see also
Fed. R. Civ. P. 72(b)(3). If objections are filed, a de
novo determination is required “of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3).
Legal conclusions are reviewed de novo, even in the
absence of an objection. See LeCroy v. McNeil, 397
Fed.Appx. 554, 556 (11th Cir. 2010) (citation omitted);
Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th
relevant background, Defendant's mother died in 2005, and
his father in 2015. Dkts. 1-1 ¶ 6, 1-2 at 12 ¶ 6.
Plaintiff was appointed the personal representative of
Defendant's father's estate in 2016 by the probate
court in Pinellas County, Florida. Dkts. 1-1 ¶ 4, 1-2 at
11 ¶ 4. Defendant had been living in a condominium owned
by his parents in Clearwater, Florida. Dkt. 1-2 ¶ 1.
underlying complaint sought to eject Defendant from the
condominium. Dkts. 1-1, 1-2 at 11-19. Defendant filed a
counterclaim, as “lawful” heir of both his
parents, for an accounting and inventory of his father's
estate. Dkt. 1-2 at 20-25. He intimates his father's will
was executed under fraud and duress, and he claims the right
to possess the condominium. Id. According to
Plaintiff, the complaint was voluntarily dismissed in March
2019. Dkt. 10 ¶ 6.
resolving in forma pauperis status, the magistrate
judge necessarily considered whether the sole counterclaim
constituting this action is frivolous or fails to state a
claim for relief. His report aptly explains why the claim is
both. It does not contain a short, plain statement of
jurisdiction as required by the Federal Rules of Civil
Procedure. Cf. Moore v. As-Com, Inc., No.
8:05-cv-2244-T-24TGW, 2006 WL 1037108, at *2 n.1 (M.D. Fla.
Apr. 19, 2006) (citing Fed.R.Civ.P. 8(a) and impliedly
recognizing rule that jurisdiction be stated by application
of exception to rule). Without a basis for federal
jurisdiction, the counterclaim fails to state a claim for
relief and states no clear legal basis, rendering it
found the claim deficient, the magistrate judge recommends
dismissal based on the absence of either diversity or federal
question jurisdiction. Dkt. 6. The Court agrees. The recovery
of real property and associated probate issues do not arise
under federal law and are matters best left for the state
court. Dkt. 6 at 3. Defendant even admits that Judge Porcelli
“is right in stating the recovery of the real property
by the defendant is a state issue and that action will be
dealt with in [the estate case].” Dkt. 11 ¶ 9.
is lacking because Defendant fails to allege he is not an
alien permanently residing in the same state as Plaintiff,
which is Florida. Id. (citing 28 U.S.C. §
1332(a)(2) and Magdalena v. Toyota Motor Corp., No.
12-20661-CIV, 2013 WL 12092086, at *6 (S.D. Fla. July 10,
2013) (finding that 2011 amendment to § 1332
“supports prior holdings that permanent residency does
not create jurisdiction in alien-vs.-alien cases”).
Defendant contends in his objection that he is not a
permanent resident alien of Florida based on the fact that he
does not have “a permanent alien ID.” (Dkt. 11
¶ 5). Even if Defendant could prove he is not a resident
of Florida, the amount in controversy has not been
reasons explained by the magistrate judge, and based on
de novo review of the case, the Court rules as
1) Defendant's objections (Dkt. 11) are overruled.
2) The report and recommendation (Dkt. 6) is adopted as part
of this order, confirmed, and approved in all respects.
3) Defendant/Counterclaimant's construed motion to
proceed in forma pauperis (Dkt. 4) is denied.
4) Plaintiff's Motion to Remand is (Dkt. 10) is denied as
5) The Clerk is directed to remand this case to the Sixth
Judicial Circuit in and for Pinellas County, Florida, and