Owens et al v. Moreland

Filing 14

OPINION AND ORDER granting 5 Unopposed Motion to Remand to State Court; denying 7 Petition for Removal; denying 10 Motion for leave to proceed in forma pauperis/affidavit of indigency. The Clerk shall remand the three cases to the three se parate state courts and transmit a certified copy of this Order to those courts, terminate all pending matters, and close the file. Plaintiffs' request for attorney fees is granted and a motion shall be filed within 14 days of this Opinion and Order. Signed by Judge John E. Steele on 5/11/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANDREW OWENS, KAREN RUSHING,
EARL MORELAND, and KENNETH
TUCKER,
Plaintiffs,
v.

Case No: 2:15-cv-80-FtM-29DNF

GARY VANCE MORELAND,
Defendant.
OPINION AND ORDER
This

matter

comes

before

the

Court

on

the

plaintiffs’

Partially Unopposed Motion to Remand (Doc. #5) filed on March 10,
2015.

No response has been filed and the time to respond has

expired.

For the reasons set forth below, the motion to remand is

granted.
Plaintiffs

filed

three

actions

in

state

court

against

defendant Gary Moreland (Moreland): 1) Owens, et. al., v. Moreland,
Case No. 2013 CA 7755 (Sarasota County); 2) Owens et al., v.
Moreland, et al., Case No. 2014 CA 566 (Charlotte County); 3) Owens
et al., v. Moreland, et al., Case No. 2014 CA 664 (Leon County).
Each action sought injunctive and declaratory relief to obtain the
expungement

of

allegedly

fraudulent

against each plaintiffs’ properties.

liens

Moreland

had

filed

Plaintiffs served Moreland

with the Sarasota County Complaint on April 13, 2014 (Doc. #5-1,

p. 17), the Charlotte County Complaint on October 29, 2014 (Doc.
#5-2, p. 13), and the Leon County Complaint on December 22, 2014
(Doc. #5-3, p. 18).
Defendant’s Notice of Removal Actions of Related Cases and
its Certificate of Service (Doc. #1) were signed by defendant on
January 4, 2015, while he was incarcerated, but was not filed with
the Court until February 9, 2015.

Since the Notice of Removal

refers to documents filed on January 26, 2015, it appears the
signature date is incorrect. 1

Defendant also filed a Petition for

Removal of Cases to the U.S. District Court (Doc. #7) and a
supporting Memorandum of Law (Doc. #8) on March 12, 2015.
Plaintiffs now seek to have the three cases remanded to their
respective state courts for both jurisdictional and procedural
reasons.

While there are multiple procedural problems which would

require remand, the fundamental problem which requires remand is
that a federal court lacks subject-matter jurisdiction over any of
the three state cases. 2

1The

Court will assume that a prisoner delivered a filing to
prison authorities on the date that he signed it absent evidence
to the contrary. Jeffries v. United States, 748 F.3d 1310, 1314
(11th Cir. 2014).
2If

the Court determines “at any time” that it lacks subjectmatter jurisdiction, the Court must dismiss the case.
Fed. R.
Civ. P. 12(h)(3).

2

Removal jurisdiction exists only where the district court
would have original jurisdiction over the action, unless Congress
expressly provides otherwise.

28 U.S.C. § 1441(a); Darden v. Ford

Consumer Fin. Co., Inc., 200 F.3d 753, 755 (11th Cir. 2000).
a

motion

to

remand,

the

party

seeking

to

invoke

On

federal

jurisdiction bears the burden of establishing the jurisdiction of
the federal court.

Triggs v. John Crump Toyota, Inc., 154 F.3d

1284, 1288 n.4 (11th Cir. 1998); Pacheco De Perez v. AT & T Co.,
139 F.3d 1368, 1373 (11th Cir. 1998); Diaz v. Sheppard, 85 F.3d
1502, 1505 (11th Cir. 1996), cert. denied, 520 U.S. 1162 (1997).
Thus, the burden of establishing federal question jurisdiction in
this case is upon defendant.
“The presence or absence of federal-question jurisdiction is
governed by the ‘well-pleaded complaint rule,’ which provides that
federal

jurisdiction

presented

on

complaint.”
(1987).

the

exists

face

of

only
the

when

a

federal

plaintiff's

question

properly

is

pleaded

Caterpillar Inc. v. Williams, 482 U.S. 386, 392

Defendant’s right to remove a case is determined by

examining the allegations in the complaint at the time defendant
files the notice of removal.
U.S. 200, 206-08 (1993).

Keene Corp. v. United States, 508

There is no federal question claim set

forth in any of the Complaints filed in the state court cases.
All three state court Complaints allege claims for declaratory
judgment and injunctive relief to expunge allegedly fraudulent

3

liens.

(See Docs. ## 5-1, 5-2, 5-3.)

The causes of actions were

not created by federal law, and there is no substantial federal
issue which is necessarily raised, actually disputed and capable
of resolution in federal court without disrupting the federalstate balance approved by Congress.

Gunn v. Minton, 133 S. Ct.

1059, 1065 (2013).
Defendant states, however, that all three cases are directly
related and arise under 31 U.S.C. §§ 462, 463 (Doc. #1, ¶ 2; Doc.
#7, ¶ 1), and makes reference to a state court counterclaim raising
federal issues (Doc. #7, ¶ 4.)
for

federal

jurisdiction.

statutes in Title 31.

Neither argument provides a basis

First,

there

are

no

such

federal

Even if there were, a federal claim raised

in a counterclaim will not provide a basis for removal.

Holmes

Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826
(2002); Vaden v. Discover Bank, 556 U.S. 49 (2009).

Because there

is no proper basis upon which these cases could have been removed
to federal court, they must each be remanded to the state courts
from which they came.
Plaintiffs also requests costs and reasonable attorney’s fees
pursuant to 28 U.S.C. § 1447(c).

(Doc. #5, p. 10.)

"An order

remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the
removal."

28 U.S.C. § 1447(c).

The award of costs and expenses,

including attorney fees, is not automatic, but is appropriate in

4

the discretion of the court when such an award is just.

Martin v.

Franklin Capital Corp., 546 U.S. 132, 139-41 (2005). Here, removal
of all three state cases was unreasonable from the beginning.
There was no federal claim or any arguable basis for a federal
issue raised in any of the three complaints, and there could be no
removal based upon a counterclaim even if the federal statutes
cited by defendant actually existed.

The Court, in the exercise

of its discretion, grants plaintiffs’ request for an award of
attorney fees.
Accordingly, it is now
ORDERED:
1. Plaintiffs’ Partially Unopposed Motion to Remand (Doc. #5)
is GRANTED.
2. Defendant’s Petition for Removal of Cases to the U.S.
District Court (Doc. #7) is DENIED, and therefore the Affidavit of
Indigency (Doc. #10), construed as a request to proceed in forma
pauperis, is DENIED.
3. The Clerk is directed to:
a. Remand the Sarasota County Case (2013 CA 7755) to the
Circuit Court of the Twelfth Judicial Circuit in and for
Sarasota County, Florida and transmit a certified copy of
this Order to the Clerk of that Court.
b. Remand the Charlotte County Case (2014 CA 566) to the
Circuit Court of the Twentieth Judicial Circuit, in and for

5

Charlotte County, Florida and transmit a certified copy of
this Order to the Clerk of that Court.
c.

Remand the Leon County Case (2014 CA 664) to the

Second Judicial Circuit in and for Leon County, Florida and
transmit a certified copy of this Order to the Clerk of that
Court.
4. Plaintiffs’

request

for

attorney

fees

is

GRANTED.

Plaintiffs shall file a motion for attorney fees with supporting
documentation within FOURTEEN (14) DAYS of the filing of this
Opinion and Order. Defendant shall file a response within FOURTEEN
(14) DAYS after that filing.
5. The Clerk is further directed to terminate all other
pending motions as moot and close the file.

The Court retains

jurisdiction only as to the motion for attorney fees and costs.
DONE AND ORDERED at Fort Myers, Florida, this
May, 2015.

SA: FTMP-2
Copies: Counsel of record

6

11th

day of