Deutsche Bank v. Hines et al
ORDER granting 14 Plaintiff's Motion to Remand.The Clerk of Court is directed to REMAND the case to the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida, and to transmit a certified copy of this Order to the Clerk of that Court. Te Clerk of the Court is further directed to terminate all pending motions and deadlines, and close this case. Signed by Judge Sheri Polster Chappell on 3/10/2015. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DEUTSCHE BANK NATIONAL TRUST
COMPANY, Trustee on behalf of the
certificateholders of Morgan Stanley ABS
Capital 1 Inc. Trust 2004-HES, Mortgage
Pass-Through Certificates, Series 2004HES
Case No: 2:15-cv-40-FtM-38CM
ROBERT HINES, GAIL FEDORAHINES,
UTILITIES, INC., UNITED STATES
TENANTS IN POSSESSION ’35;1
AND ’35;2 and ALL OTHER
This matter comes before the Court on Plaintiff's Motion to Remand (Doc. #14)
filed on February 20, 2015. Defendants Robert Hines and Gail Fedora-Hines failed to file
a Response in Opposition, and the time to do so has now expired. Thus, the Motion is
ripe for review.
The determination of whether a defendant properly removed a state court action
to federal court entails both jurisdictional and procedural considerations.
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Alabama Power Co., 483 F.3d 1184, 1194 (11th Cir. 2007). Jurisdictionally, removal is
governed by Title 28 U.S.C. § 1441(a), which provides that a defendant may remove an
action to federal court only if the district court has jurisdiction based on diversity of
citizenship of the parties or federal question. Procedurally, removal is governed by Title
28 U.S.C. § 1446, which sets out strict deadlines and consent requirements for proper
Courts must construe these removal statutes narrowly, resolving any
uncertainties in favor of remand. Burns v. Windsor Insur. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994). The removing party has the burden of proving that federal jurisdiction exists
by a preponderance of the evidence and the removing party must present facts
establishing its right to remove. Williams v. Best Buy Company, Inc. 269 F.3d 1316, 1319
(11th Cir. 2001).
With regard to the § 1441 jurisdictional requirements, the Court finds that removal
was improper. Defendants Robert Hines and Gail Fedora-Hines removed this action on
the basis of federal question jurisdiction. (Doc. #1). A federal question arises “under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “The presence or
absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’
which provides that federal jurisdiction exists only when a federal question is presented
on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987). Accordingly, in determining whether federal question jurisdiction
exists, courts focus solely on the four corners of the state action complaint. Id.
A review of Plaintiff’s Verified Complaint reveals only a single count for foreclosure,
asserted under Florida state law. (Doc. #2). The Verified Complaint does not set forth
any counts or claims pursuant to the Constitution, laws, or treaties of the United States
as required by 28 U.S.C. § 1331. (Doc. #2). Defendants Robert Hines and Gail FedoraHines argue that the Plaintiff’s Verified Complaint violates the U.S. Constitution and a
host of federal laws; however, federal question jurisdiction cannot be created through
defensive pleading. See Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535
U.S. 826, 830-32 (2002). Consequently, Defendants Robert Hines and Gail FedoraHines failed to prove jurisdiction exists by a preponderance of the evidence, and the Court
must remand the case to Florida state court.
Notwithstanding the jurisdictional analysis above, the Court also finds that
Defendants Robert Hines and Gail Fedora-Hines failed to comply with the § 1446
procedural requirements. First, in order to remove an action to federal court, all
defendants must consent to the removal. 28 U.S.C. § 1446(b)(2)(A). A review of the
Notice of Removal illustrates that Defendants Robert Hines and Gail Fedora-Hines failed
to receive the consent of all other Defendants before filing the Notice. (Doc. #1). This
failure, in and of itself, is sufficient to grant Plaintiff’s Motion for Remand. Second, removal
is timely, at the latest, thirty days after the last defendant receives of a copy of the paper
from which the defendant is first able to ascertain that the case is removable.
1446(b)(1)-(3). Here, assuming the jurisdictional defects were not present (which they
are), the paper alerting Defendants that the case was potentially removable (which it was
not) was the state court complaint. The record shows that Plaintiff served the last
Defendant with a copy of the complaint on March 10, 2010. (Doc. #14-1 at 1). Clearly,
Defendants exceeded the thirty-day deadline by nearly five years.
Based on the foregoing, Defendant Robert Hines and Gail Fedora-Hines failed to
satisfy both the jurisdictional and procedural requirements of removal. Therefore, the
Court remands the instant action to the Circuit Court of the Twentieth Judicial Circuit in
and for Lee County, Florida.2
Accordingly, it is now
1. Plaintiff's Motion to Remand (Doc. #14) is GRANTED.
2. The Clerk of Court is directed to REMAND the case to the Circuit Court of the
Twentieth Judicial Circuit in and for Lee County, Florida, and to transmit a
certified copy of this Order to the Clerk of that Court.
3. The Clerk of the Court is further directed to terminate all pending motions and
deadlines, and close this case.
DONE and ORDERED in Fort Myers, Florida, this 10th day of March, 2015.
Copies: All Parties of Record
Although Plaintiff correctly notes that the Court has discretion to award attorneys’ fees and costs
incurred as a result of the improper removal (Doc. #14 at 8), the Court declines to exercise such
discretion at this time.
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