Pedraza v. Monarch Recovery Management, Inc.

Filing 13

ORDER denying 12 Plaintiff's Motion for Remand and Memorandum of Law in Support. Signed by Judge Sheri Polster Chappell on 2/11/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARGARET PEDRAZA,
Plaintiff,
v.

Case No: 2:13-cv-892-FtM-38DNF

MONARCH RECOVERY
MANAGEMENT, INC.,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff's Motion for Remand and
Memorandum of Law in Support (Doc. #12) filed on January 24, 2014. Although given the
opportunity Defendant has not filed a response. This motion is now ripe for review.
Procedural History
Plaintiff filed a four count Complaint against Defendant in the Twentieth Judicial
Circuit in and for Charlotte County, Florida on or about November 21, 2013. (Doc. #2).
The counts have been brought pursuant to the Florida Consumer Collection Practices
Act, the Telephone Consumer Protection Act (hereinafter “TCPA”), and a federal
telecommunications statute, 47 C.F.R. 64.1200. On December 26, 2013, Defendant filed
a notice of removal to federal court. (Doc. #1). Defendant’s notice states this court has

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original jurisdiction pursuant to a federal question, specifically the TCPA. Plaintiff filed this
motion to remand.
Standard
The law governing matters removed to federal court is clear and strictly construed.
Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants to
the district court of the United States for the district and division embracing
the place where such action is pending.
28 U.S.C. § 1441. With regard to matters removed to federal court pursuant to federal
question jurisdiction, Courts look to the face of a properly pleaded complaint to determine
if a court has subject matter jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987); Key Bank U.S.A., N.A. v. First Union Nat. Bank of Florida, 234 B.R. 827, 830
(M.D. Fla. 1999). In addition, a matter removed to federal court must be timely made
within 30 days after receipt of the initial pleading, after service of the summons upon the
defendant, or after the matter has become removable. 28 U.S.C. § 1446. The burden is
on the removing party to establish that a district court has jurisdiction over a matter. Bolen
v. Illinois Nat. Ins. Co., No. 6:10-cv-1280-Orl-37DAB, 2012 WL 4856811 *2 (M.D. Fla.
Aug. 28, 2012) (citing Williams v. Best Buy Company, Inc. 269 F.3d 1316, 1319 (11th
Cir.2001)).
Discussion
Procedurally, Defendant concedes in its Notice of Removal that Plaintiff filed the
original complaint on or about November 21, 2013. (See Doc. #1). In addition, Defendant
states it was served with a copy of the summons and complaint on December 3, 2013.
(Doc. #1-1). Thereafter, on December 26, 2013, Defendant filed a Notice of Removal to

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federal court. (Doc. #1). Therefore, Defendant’s notice was timely filed within the 30 day
time frame after service of the summons. Plaintiff offers no argument to negate removal
to federal court procedurally.
With regard to jurisdiction, Plaintiff contends the Court should abstain from
exercising its jurisdiction because of the Younger doctrine. Plaintiff relies on Middlesex
County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). Alternatively,
Plaintiff contends the case should be bifurcated by allowing the counts brought pursuant
to the TCPA and federal telecommunications statute to remain in federal court and all
other counts not brought pursuant to a federal statute to be remanded to the Twentieth
Circuit.
The Court finds Plaintiff’s arguments to be unavailing. Pursuant to the Younger
doctrine, federal courts should abstain from matters involving “vital state interest.”
Middlesex County Ethics Comm., 457 U.S. at 432. Here, there is no vital state interest
and this Court would not be overstepping its jurisdictional limitations by facilitating this
litigation.2 This Court has subject matter jurisdiction in this matter because there was a
federal question at the time of removal due to the count brought pursuant to the TCPA.
Davenport v. Ford Motor Co., No. 1:05-cv-3047-WSD, 2006 WL 2048308 at *4 (N.D. Ga.
July 20, 2006) (citation omitted); c.f. Meyer v. Health Management Associates, Inc., 841
F.Supp.2d 1262, 1267 (S.D. Fla. 2012) (remanding the matter to state court because the
Complaint did not allege a federal question). Plaintiff is the master of the claim who can
avoid federal jurisdiction by filing a complaint in state court brought only pursuant to state

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Federal courts have repeatedly facilitated litigation that involved Florida law including the Florida
Consumer Collection Practices Act. See e.g., Bacelli v. MFP, Inc., 729 F.Supp.2d 1328 (M.D. Fla. 2010);
North Star Capital Acquisition, LLC v. Krig, 611 F.Supp.2d 1324 (M.D. Fla. 2009); Trent v. Mortgage
Electronic Registration Systems, Inc., 618 F.Supp.2d 1356 (M.D. Fla. 2007).

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law. See Kemp v. Int’l Bus. Mach. Corp., 109 F.3d 708, 712 (11th Cir. 1997); Key Bank,
234 B.R. at 830. Here, Plaintiff included a federal question within the complaint and
therefore subjected herself to federal court. Further, bifurcation of the complaint is not a
proper remedy either.
Accordingly, it is now
ORDERED:
Plaintiff's Motion for Remand and Memorandum of Law in Support (Doc. #12) is
DENIED.
DONE and ORDERED in Fort Myers, Florida this 11th day of February, 2014.

Copies: All Parties of Record

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