United States District Court, M.D. Florida, Tampa Division
BARBER UNITED STATES DISTRICT JUDGE
this Court is plaintiff The Bank of New York Mellon's
Motion to Remand to State Court and for Attorneys' Fees
and Costs (Doc. # 11), filed on March 11, 2019. In response,
pro se defendant Charles W. Fisher filed multiple objections
to the Motion. (Doc. ## 13, 16, 21, 22). For the reasons that
follow, the Motion is granted.
November 16, 2018, Bank of New York initiated this action in
the Circuit Court of the Thirteenth Judicial Circuit, In and
For Hillsborough County, Florida. (Doc. # 1-1). According to
the Complaint, Bank of New York seeks foreclosure of a
residential mortgage executed by defendants Jolceli F. Souza
and Zildilaine Furtado securing a promissory note with a
remaining balance of $321, 623.94. (Id. at
¶11). The Complaint also lists “Unknown Tenant in
Possession of Subject Property” as one of the
defendants, who was later identified as Fisher. (Id.
at ¶ 22). Fisher was served process on January 8, 2019.
(Doc. # 1 at ¶ 4). On January 23, 2019, Fisher filed his
answer, affirmative defenses, and counterclaims in state
court. (Doc. # 1-2). Among other things, Fisher brings
counterclaims for misrepresentation, fraud, and violations of
various federal statutes, including the Fair Debt Collection
Practices Act. (Id. at 31-32, 48-50). Thereafter,
Fisher removed this action to federal court on February 7,
2019. (Doc. # 1).
New York contends Fisher's removal was improper and seeks
to remand this action back to state court. (Doc. # 11 at
4-5). In removed cases, 28 U.S.C. § 1447(c) specifies,
“[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.” Removal statutes are strictly
construed against removal. Shamrock Oil & Gas Co. v.
Sheets, 313 U.S. 100, 108 (1941). The removing defendant
bears the burden of establishing federal jurisdiction.
Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d
1290, 1294 (11th Cir. 2008). Any doubt as to propriety of
removal should be resolved in favor of remand to state court.
Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979).
Notice of Removal, Fisher contends “[t]his case is a
civil action over which this court has original diversity
jurisdiction pursuant to 28 U.S.C. § 1332.” (Doc.
# 1 at 3). “For federal diversity jurisdiction to
attach, all parties must be completely diverse . . . and the
amount in controversy must exceed $75, 000.”
Underwriters at Lloyd's London v.
Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010).
According to Fisher, the amount-in-controversy requirement is
met because Souza and Furtado owe $321, 623.94 under the
promissory note. (Doc. # 1 at 3). Fisher also contends there
is complete diversity of citizenship because he is a resident
of Florida and Bank of New York is incorporated in Delaware
with a principal place of business in New York. (Id.
Fisher is not the only defendant in this action, and the
Complaint and Notice of Removal contain insufficient
allegations to establish the remaining defendants'
citizenship. For example, Fisher alleges defendant Resolution
Properties Trust LLC's “address is 10605 Marsanne
Place Riverview, Florida 33578.” (Id. at 4).
Yet a limited liability company, such as Resolution
Properties, “is a citizen of any state of which a
member of the company is a citizen.” Rolling Greens
MHP, L.P. Comcast SCH Holdings LLC, 374 F.3d 1020, 1022
(11th Cir. 2004). Therefore, allegations of Resolution
Properties' address are insufficient to establish its
citizenship. Furthermore, the Complaint and Notice of Removal
are devoid of any allegations of the citizenships of
defendant Quintessa Homeowners Association Inc., Souza, and
even with proper allegations of the parties'
citizenships, removal on the basis of diversity jurisdiction
is not warranted. Under the forum-defendant rule, an action
that is otherwise removable to federal court solely on the
basis of diversity jurisdiction “may not be removed if
any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b); Goodwin v.
Reynolds, 757 F.3d 1216, 1218 (11th Cir. 2014). This
action was initiated in Florida state court, and Fisher is a
citizen of Florida. (Doc. # 1 at 3). Thus, Fisher may not
remove this action on the basis of diversity jurisdiction.
See Wells Fargo Bank, N.A. v. Benjamin, No.
6:16-cv-1655-Orl-41DAB, 2016 WL 6652468, at *2 n.6 (M.D. Fla.
Sept. 29, 2016) (noting removal based on diversity
jurisdiction was not permissible because “[t]his
foreclosure action was brought in Circuit Court in Florida,
and [the removing defendant] is a resident of Orange County,
also contends in his Notice of Removal that this action is
“being moved on several other questions of federal law
and violation[s] of U.S.C. but not limited to 42 U.S.C.
sec.1983, 18 U.S.C. §§ 513 FALSE UTTER, SEC, FTC,
TILA, FDPA, FDCPA, Public Law preservation of homeowner's
equity interest, U.S. Constitution Article I, First, Seventh,
[and] Fourteenth Amendments.” (Doc. # 1 at 1-2). In
other words, Fisher appears to contend this Court has federal
question jurisdiction. Under 28 U.S.C. § 1331, district
courts have jurisdiction over “civil actions arising
under the Constitution, laws, or treaties of the United
States.” For purposes of Section 1331, the well-pleaded
complaint rule is used to determine whether a claim arises
under federal law. Under the well-pleaded complaint rule,
“federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” Smith v. GTE
Corp., 236 F.3d 1292, 1310 (11th Cir. 2001) (quotation
marks and citations omitted).
the Complaint includes a single mortgage foreclosure claim,
which arises under state law. (Doc. # 1-1). Bank of New York
does not assert a cause of action under any federal statute,
nor is there any suggestion that Bank of New York's right
to foreclose depends on the resolution of a federal issue.
See Smith, 236 F.3d at 1310 (“A well-pleaded
complaint presents a federal question where it establishes
either that federal law creates the cause of action or that
the plaintiff's right to relief necessarily depends on
resolution of a substantial question of federal law”
(quotation marks and citations omitted)).
to the extent some of Fisher's affirmative defenses and
counterclaims are premised on federal law, such allegations
do not support removal. See Grant v. Rotolante, No.
6:13-cv-168-Orl-TBS, 2013 WL 2155076, at *6 (M.D. Fla. May
17, 2013) (“It is well established that a defense or
counterclaim presenting a federal question cannot create
removal jurisdiction.”). Thus, Fisher may not remove
this action on the basis of federal question jurisdiction
either. See Bank of New York v. Oviatt, No.
6:16-cv-782-Orl-40DAB, 2016 WL 11583057, at *2 (M.D. Fla. May
12, 2016) (remanding state foreclosure action because removal
was not permissible under well-pleaded complaint rule based
on defendant's federal counterclaims).
Fisher has failed to carry his burden of establishing
diversity or federal question jurisdiction. Consequently,
this action is remanded for lack of subject matter