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Suntrust Bank v. Stripling

United States District Court, N.D. Florida, Tallahassee Division

December 3, 2019

SUNTRUST BANK, Plaintiff,
v.
KAREN STRIPLING, Defendant.

          REPORT AND RECOMMENDATION

          Michael J. Frank United States Magistrate Judge

         For the reasons stated below, the undersigned recommends that Plaintiff's motion to remand this action to the Circuit Court, Fourteenth Judicial Circuit, in and for Jackson County (Doc. 3) be granted.[1]

         I. Background

         A. Defendant's First Removal of the Foreclosure Action

         On December 16, 2015, Plaintiff filed a residential mortgage foreclosure action in Florida state court against Defendant. (Doc. 3 at 1). On June 13, 2018, Defendant removed that case to the United States District Court for the Northern District of Florida. Suntrust Bank v. Stripling, No. 5:18-cv-138-RH-GRJ (N.D. Fla. June 13, 2018). On July 2, 2018, United States Magistrate Judge Gary R. Jones issued a Report and Recommendation (“R&R”). Id. at Doc. 6. The R&R noted numerous deficiencies in Defendant's removal which included failing to follow the statutory requirements for removal, untimely removal, and lack of subject matter jurisdiction. Id. On July 24, 2018, United States District Judge Robert L. Hinkle adopted the R&R and remanded the case to state court. Id. at Doc. 12.

         B. Defendant's Second Removal of the Foreclosure Action

         On September 17, 2018, Defendant filed another notice of removal, using the same case number assigned to her by the clerk of the court when she removed the foreclosure action to the Northern District of Florida in June 2018. Suntrust Bank v. Stripling, No. 5:18-cv-138-RH-GRJ (N.D. Fla. Sept. 17, 2018) (Doc. 15). On November 15, 2018, Judge Hinkle remanded the case to state court for the second time because “there plainly was no basis for federal jurisdiction.” Id. at Doc. 18. Judge Hinkle warned Defendant “not to again attempt to remove the case to this court. Violation of that directive, which is an injunction, may be punished as a contempt of court.” Id.

         C. Defendant's Third Removal of the Foreclosure Action

         On August 30, 2019, in disregard of Judge Hinkle's instruction not to remove this action again, Defendant filed a third notice of removal with this court. Suntrust Bank v. Stripling, No. 4:19-cv-422-MW-MJF (N.D. Fla. Aug. 30, 2019) (Doc. 1). On September 30, 2019, Plaintiff filed a motion for remand. Id. at Doc. 3. Plaintiff argues that “the Defendant has failed to timely file her Notice of Removal in violation of 28 U.S.C. § 1446(b) and filed her Notice of Removal in violation of this Court's prior injunction.” Id.

         On October 7, 2019, the undersigned denied Defendant's motion to proceed in forma pauperis and ordered Defendant to: (1) submit payment of $400.00 to the clerk of the court; (2) show cause why this action should not be dismissed for lack of subject matter jurisdiction and for Defendant's failure to follow the requirements of 28 U.S.C. § 1446(a); and (3) show cause why this court should not impose sanctions for Defendant's failure to obey Judge Hinkle's order that she not again remove this case to the United States District Court for the Northern District of Florida. (Doc. 5 at 3). The undersigned warned Defendant that her failure to comply with that order likely would result in dismissal of this action for failure to pay the filing fee, lack of subject matter jurisdiction, and failure to follow an order of this court. Id.

         On October 18, 2019, Defendant filed an “Objection to Order and Notification of Removal.” (Doc. 6). In Defendant's objection, she did not address this court's lack of subject matter jurisdiction, her failure to follow the requirements of 28 U.S.C. § 1446(a), and the appropriateness of sanctions for Defendant's failure to obey Judge Hinkle's order.

         On October 29, 2019, the undersigned again ordered Defendant to: (1) pay the filing fee; (2) show cause why this action should not be dismissed for lack of subject matter jurisdiction and for Defendant's failure to follow the requirements of 28 U.S.C. § 1446(a); and (3) show cause why this court should not impose sanctions for Defendant's failure to obey Judge Hinkle's order that she not again remove this case to the United States District Court for the Northern District of Florida. (Doc. 7). This court again warned Defendant that her failure to comply with that order likely would result in dismissal of this action for failure to pay the filing fee, lack of subject matter jurisdiction, and failure to follow an order of this court. Id.

         On November 12, 2019, Defendant filed an “Objection to Order” which objected to the undersigned's order dated October 29, 2019. (Doc. 9). Defendant again failed to show cause why this action should not be dismissed for the above noted deficiencies. Notably, Defendant states that “Defendant is not paying another penny for anything, ” making it clear that Defendant does not intend to pay the $400.00 filing fee. (Id. at 8). On November 13, 2019, Defendant filed an “Objection to Order-Addendum, ” in which Defendant supplemented her previous objection. (Doc. 10). Defendant again states that she “is not paying another penny for anything.” (Id. at 16). On November 18, 2019, Defendant filed “Objection to Order-Second Addendum, ” in which Defendant further supplemented her previous objections. (Doc. 11). Defendant again states that she “is not paying another penny for anything.” (Id. at 12).

         As of the date of this R&R, Defendant has not paid the $400.00 filing fee, nor has she shown cause why this action should not be ...


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