Stern v. Bank of America Corporation

Filing 39

OPINION AND ORDER denying 4 Plaintiff's Motion for Certification; denying 6 Plaintiff's Motion to Remand; denying 17 Plaintiff's Motion to Stay; and denying 25 Plaintiff's Motion for Reconsideration. See Opinion and Or der for details. Within 21 days of this Order, Plaintiff shall retain counsel and have counsel file a Notice of Appearance. If no notice of appearance is filed, the Court will dismiss the case without prejudice. Signed by Judge John E. Steele on 5/28/2015. (MAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID
STERN,
Personal
Representative of the Khaki
Realty Trust,
Plaintiff,
v.

Case No: 2:15-cv-153-FtM-29CM

BANK OF AMERICA CORPORATION,
Defendant.
OPINION AND ORDER
This matter comes before the Court on the following motions:
(1) Plaintiff’s Motion for Certification (Doc. #4) filed on March
10, 2015; (2) Plaintiff’s Motion to Remand (Doc. #6) filed on March
12, 2015, and Defendant’s Response (Doc. #31) filed on April 23,
2015; (3) Plaintiff’s Motion to Stay (Doc. #17) filed on April 8,
2015, and Defendant’s Response (Doc. #37) filed on May 22, 2015;1
and (4) Plaintiff’s Motion for Reconsideration (Doc. #25) filed on
April 15, 2015.

Defendant did not respond to the Motion for

Certification or the Motion for Reconsideration and the time to do
so has expired.

For the reasons set forth below, the motions are

denied.

1

Plaintiff’s request to stay these proceedings was made in its
Response (Doc. #17) to Defendant’s Motion to Dismiss (Doc. #11).
In a prior Order (Doc. #33), the Court construed this request as
a Motion to Stay and directed Defendant to respond.

I.
Plaintiff David Stern, proceeding pro se, brings this case on
behalf of the Khaki Realty Trust (the Trust) as its personal
representative.

Plaintiff seeks a declaratory judgment (1) that

Defendant is precluded from foreclosing upon a parcel of real
property owned by the Trust; (2) that Defendant is not entitled to
possession of the property; and (3) that Defendant must yield
possession of the property to the Trust.
Plaintiff

initiated

this

case

in

(Docs. ##2, 9-1.)
the

Twentieth

Circuit Court in and for Lee County, Florida.

Judicial

(Doc. #2.)

On

March 10, 2015, Defendant removed the case to federal court on the
basis of diversity jurisdiction.

(Doc. #1.)

On April 9, 2015,

the Court ordered Plaintiff to retain counsel because non-natural
persons such as the Trust may appear in federal court only through
a licensed attorney.

(Doc. #21.)

Plaintiff now moves (1) to

remand the case to state court; (2) to certify a question to
Florida’s

Second

District

Court

of

Appeals;

(3)

for

reconsideration of the Court’s order directing him to obtain
counsel; and (4) to stay this case pending a forthcoming ruling by
the Florida Supreme Court.
II.
A.

Motion to Remand
In its Notice of Removal, Defendant asserts that the Court

has original jurisdiction pursuant to 28 U.S.C. § 1332 because
this case is a civil action between citizens of different states
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where the matter in controversy exceeds $75,000.
the

party

seeking

federal

jurisdiction,

the

(Doc. #1.)
burden

is

As
upon

Defendant to establish diversity jurisdiction as of the date of
removal.

Sammie Bonner Constr. Co. v. W. Star Trucks Sales, Inc.,

330 F.3d 1308, 1310 (11th Cir. 2003).

Plaintiff argues that

Defendants have failed to establish both diversity of citizenship
and the requisite amount in controversy.
1.

Diversity of Citizenship
According to Plaintiff, both he and the Trust are citizens of

Florida. (Doc. #26.)

Defendant states that it is incorporated in

Delaware with its principal place of business in North Carolina.
(Doc. #1.)

“[A] corporation shall be deemed to be a citizen of

every State and foreign state by which it has been incorporated
and of the State or foreign state where it has its principal place
of business.”
evidence

28 U.S.C.A. § 1332.

contradicting

Defendant’s

Plaintiff has provided no
jurisdictional

allegations.

Thus, Defendant is deemed a citizen of both Delaware and North
Carolina and there is complete diversity of citizenship.2

2

Subsequent to filing the motion to remand, Plaintiff moved to
amend its complaint to add Bank of America, N.A. as a Defendant.
This does not impact that Court’s analysis because Bank of America,
N.A. is a national banking association with its main office in
North Carolina. Arthur v. JP Morgan Chase Bank, NA, 569 F. App'x
669, 673 (11th Cir. 2014) (“A national banking association is a
citizen of the state where it is located . . . [and] a national
bank is located in the place where it is designated to have its
main office.”) (quotation and citation omitted).
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2.

Amount in Controversy
Typically,

where

removal

is

based

upon

diversity

jurisdiction, “the sum demanded in good faith in the initial
pleading shall be deemed to be the amount in controversy.”
U.S.C. § 1446(c)(2).

28

However, where the complaint does not make

a demand for damages because the plaintiff seeks injunctive or
declaratory relief, the amount in controversy “is the monetary
value of the object of the litigation that would flow to the
plaintiffs if the injunction were granted.”

Leonard v. Enterprise

Rent a Car, 279 F.3d 967, 973 (11th Cir. 2002).

A Notice of

Removal must plausibly allege the jurisdictional amount, not prove
the amount.

Dart Cherokee Basin Operating Co., LLC v. Owens, 135

S. Ct. 547, 554 (2014).
Here,

Plaintiff

seeks

a

declaratory

judgment

(1)

that

Defendant is precluded from foreclosing upon a parcel of real
property owned by the Trust; (2) that Defendant is not entitled to
possession of the property; and (3) that Defendant must yield
possession of the property to the Trust.

(Docs. ##2, 9-1.)

Thus,

the amount in controversy is the monetary value of the property.
Leonard, 279 F.3d at 973.

Stern concedes that the property is

currently subject to a mortgage held by Defendant.
9-1.)

(Docs. ##2,

As such, Plaintiff necessarily seeks to invalidate the

mortgage.

Defendant

has

provided

unchallenged

documentary

evidence that the original principle amount of the mortgage was
$292,159 (Doc. #1-5) and that the current appraised value of the
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property is $194,500 (Doc. #1-6).

By either measure, the Court

concludes that Defendant has plausibly alleged that the amount in
controversy exceeds the $75,000 jurisdictional threshold.

See,

e.g., Prop. Choice Grp., Inc. v. LaSalle Bank Nat. Ass'n, No. 12CV-1042, 2012 WL 2568138, at *1 (M.D. Fla. July 2, 2012) (“Property
Group seeks to invalidate a $272,000 mortgage.

The value of the

mortgage at issue, and thus the amount in controversy, exceeds
$75,000.”).
B.

Accordingly, Plaintiff’s motion to remand is denied.

Motion for Certification
While this case was pending in state court, Plaintiff filed

a motion requesting that the state court certify a question to
Florida’s Second District Court of Appeals.

(Doc. #4.)

As set

forth above, Plaintiff’s motion to remand is denied and this case
will proceed in federal court.

A federal district court does not

have the authority to certify questions to Florida state courts.
Bridges v. Seminole Cnty., No. 07-CV-1010, 2008 WL 638330, at *4
(M.D. Fla. Mar. 5, 2008).

Accordingly, Plaintiff’s Motion for

Certification is denied.
C.

Motion for Reconsideration
Plaintiff moves for reconsideration of the Court’s April 9,

2015 Order (Doc. #21), which directed Plaintiff to retain counsel
to represent the Trust.

In support of his motion, Plaintiff

provided an affidavit in when he states that he is the Trust’s
sole trustee and sole beneficiary.

(Doc. #26.)

information

Court’s

does

not

change

the
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This additional

analysis.

“[A]ll

artificial entities,” including trusts, must be represented by
counsel when appearing in federal court.

Rowland v. California

Men’s Colony, 506 U.S. 194, 201-02 (1993).

Plaintiff does not

cite, and the Court is unaware of, any case holding that a trust
is exempted from this requirement if it has a sole trustee and/or
beneficiary.
is denied.

Therefore, Plaintiff’s Motion for Reconsideration
Plaintiff will be required to retain counsel for the

Trust, and the failure to do so will result in the dismissal of
this case.
D.

Motion to Stay
Finally, Plaintiff seeks to stay this case pending a ruling

by the Florida Supreme Court in U.S. Bank N.A. v. Bartram, 140 So.
3d 1007 (5th DCA 2014), review granted, No. SC14-1265, 2014 WL
4662078 (Fla. Sept. 11, 2014).

As explained above, Plaintiff

seeks a declaratory judgment that, inter alia, Defendant is barred
by the statute of limitations from foreclosing on a parcel of real
property owned by Plaintiff.

There is a lack of consensus among

Florida courts concerning the Court’s ability to grant Plaintiff
this relief.

See, e.g., Deutsche Bank Trust Co., Americas v.

Beauvais, No. 3D14-575, 2014 WL 7156961, at *10 (Fla. 3d DCA, Dec.
17, 2014) (collecting cases).

Bartram, a case raising similar

legal issues, is scheduled to be heard by the Florida Supreme Court
on October 6, 2015.

Plaintiff requests that the Court say this

case until the Florida Supreme Court issues its ruling in Bartram.
Defendant opposes a stay.
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A district court “has broad discretion to stay proceedings as
an incident to its power to control its own docket.”
Jones, 520 U.S. 681, 706 (1997).

Clinton v.

When exercising this discretion,

“the district court must limit properly the scope of the stay” to
ensure that it is not “immoderate.”

Trujillo v. Conover & Co.

Commc'ns, 221 F.3d 1262, 1264 (11th Cir. 2000).

“[A] stay is

immoderate and hence unlawful unless so framed in its inception
that its force will be spent within reasonable limits, so far at
least as they are susceptible of prevision and description.”

Id.

(quoting Landis v. North American Co., 299 U.S. 248, 257 (1936)).
Accordingly, the Eleventh Circuit has routinely vacated district
court orders which stayed cases until the conclusion of a related
case proceeding in a different court.
holding

that

district

court’s

Id. (collecting cases and

order

staying

case

pending

resolution of a related case was impermissibly “indefinite in
scope”).
Here, Plaintiff seeks a stay of indefinite scope similar to
that which was vacated by the Eleventh Circuit in Trujillo.

Oral

argument in Bartram will not take place until October 6, 2015 and,
as noted by Defendant, it is not uncommon for the Florida Supreme
Court to issue rulings more than one year after oral argument.
See, e.g., Sanislo v. Give Kids the World, Inc., 157 So. 3d 256,
258 (Fla. 2015) (oral argument held November 5, 2013); Special v.
W. Boca Med. Ctr., No. SC11-2511, 2014 WL 5856384 (Fla. Nov. 13,
2014) (oral argument held April 3, 2013).
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As a result, staying

these proceedings pending a ruling in Bartram could result in a
delay of more than two years.

Furthermore, the Court is satisfied

that sufficient relevant precedent exists to allow this case to
proceed prior to a ruling in Bartram.

See, e.g., Singleton v.

Greymar Assocs., 882 So. 2d 1004, 1007 (Fla. 2004).

Therefore,

Plaintiff’s motion for a stay is denied.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Motion to Remand (Doc. #6) is DENIED.

2.

Plaintiff’s

Motion

for

Certification

(Doc.

#4)

is

DENIED.
3.

Plaintiff’s Motion for Reconsideration (Doc. #25) is

DENIED.
4.

Plaintiff’s Motion to Stay (Doc. #17) is DENIED.

5.

Within TWENTY-ONE (21) DAYS of this Order, Plaintiff

shall retain counsel and have counsel file a Notice of Appearance.
If no notice of appearance is filed, the Court will dismiss the
case without prejudice.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2015.

Copies:
Counsel of Record

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28th

day