Section 23 Property Owner's Association, Inc. v. Robinson et al

Filing 9

ORDER re 8 Order to show cause filed by Albert M. Robinson. The Clerk of Court is directed to REMAND the case to the Circuit Court of the Twentieth Judicial Circuit in and for Charlotte County, Florida, and to transmit a certified copy of this Order to the Clerk of that Court. The 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 5/12/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SECTION 23 PROPERTY OWNER’S
ASSOCIATION,
INC.,
a
Florida
corporation
Plaintiff,
v.

Case No: 2:15-cv-261-FtM-38CM

JANE B. ROBINSON, ALBERT M.
ROBINSON and LISA SPADER
PORTER,
Defendants.
/
ORDER1
This matter comes before the Court on the April 28, 2015 Order to Show Cause.
(Doc. #8). In the Order, the Court directed Defendant Albert M. Robinson to show cause
as to how he is entitled to remove this action and why this case should not be remanded
for failure to establish subject matter jurisdiction based on the presence of diversity or
federal question jurisdiction at the time of removal. (Doc. #8 at 4). Defendant Albert M.
Robinson failed to file a response, and the time to do so has now expired. The matter 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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Lowery v.

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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
removal.

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. Because Defendant Albert M. Robinson removed this action based on
both federal question and diversity jurisdiction (Doc. #1), the Court will address both in
turn.
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 Complaint reveals only
two counts for foreclosure (Count 1) and damages (Count 2), asserted under Florida state

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law. (Doc. #2). The 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). And 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, Defendant Albert M. Robinson has failed to prove federal question
jurisdiction exists by a preponderance of the evidence.
Diversity jurisdiction requires complete diversity of citizenship and that the matter
in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 28
U.S.C. § 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).
Thus, in order to have diversity jurisdiction of this case, Plaintiff Section 23 Property
Owner’s Association, Inc., must be diverse from Defendants Jane B. Robinson and Albert
M. Robinson. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89, 126 S.Ct. 606, 163 L.Ed.2d
415 (2005) (“Since Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435, this Court has read
the statutory formulation ‘between . . . citizens of different States,’ 28 U.S.C. § 1332(a)(1),
to require complete diversity between all plaintiffs and all defendants.”). Having reviewed
the Complaint, the Notice of Removal, and the accompanying exhibits, the Court finds
that complete diversity of the Parties has not been established in this matter. Specifically,
it appears that both Plaintiff Section 23 Property Owner’s Association, Inc., and Defendant
Albert M. Robinson are domiciled in Florida. With this being the case, Defendant Albert
M. Robinson has failed to prove diversity jurisdiction exists by a preponderance of the
evidence.
Notwithstanding the jurisdictional analysis above, the Court also finds that
Defendant Albert M. Robinson failed to comply with the § 1446 procedural requirements.

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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
Defendant Albert M. Robinson failed to receive the consent of all other Defendants before
filing the Notice. (Doc. #1). This failure, in and of itself, is a sufficient basis to remand
this action. 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 attachments to the Notice of Removal reveal that this action
has been ongoing in Florida state court since, at least, September 16, 2014. (Doc. #12). Clearly, Defendant Albert M. Robinson exceeded the thirty-day deadline.
Based on the foregoing, Defendant Albert M. Robinson failed to satisfy either the
jurisdictional or the procedural requirement of removal.2 Therefore, the Court remands
the instant action to the Circuit Court of the Twentieth Judicial Circuit in and for Charlotte
County, Florida.
Accordingly, it is now
ORDERED:
1. The Clerk of Court is directed to REMAND the case to the Circuit Court of the
Twentieth Judicial Circuit in and for Charlotte County, Florida, and to transmit
a certified copy of this Order to the Clerk of that Court.
2. The Clerk of the Court is further directed to terminate all pending motions and
deadlines, and close this case.

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The Court would also like to note that even if there were no jurisdictional or procedural requirement errors
(which there are), there has been no basis presented that establishes Defendant Albert M. Robinson is
even a party that is entitled to remove this action.

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DONE and ORDERED in Fort Myers, Florida, this 12th day of May, 2015.

Copies: All Parties of Record

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