Fremont Investment & Loan Company v. Bedasee et al

Filing 8

ORDER dismissing case. This case is DISMISSED for lack of subject matter jurisdiction and REMANDED to the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida. The Clerk is DIRECTED to transmit a certified copy of t his Order to the Clerk of the Court of the Twentieth Judicial Circuit in and for Collier County, Florida. The Clerk is DIRECTED to terminate any pending motions and close the case. Signed by Judge Sheri Polster Chappell on 10/5/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FREMONT INVESTMENT & LOAN
COMPANY,
Plaintiff,
v.

Case No: 2:16-cv-740-FtM-99CM

SANDIE BEDASEE, THE
UNKNOWN SPOUSE OF SANDIE
BEDASEE, OWEN BADESEE, THE
UNKNOWN SPOUSE OF OWEN
BADESEE, ANY UNKNOWN
SPOUSE, MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.,
UNKNOWNTENANT #1 and
UNKNOWN TENANT #2,
Defendants.
/
ORDER1
This matter comes before the Court sua sponte on Notice of Removal filed by
Defendant Owen Bedasee only (“Bedasee”) on September 30, 2016 (Doc. #1). Bedasee,
proceeding pro se, removed to this Court a mortgage foreclosure action that Plaintiff
Fremont Investment & Loan Company initiated in the Twentieth Judicial Circuit in and for
Collier County, Florida. (Doc. #1; Doc. #2). For the reasons that follow, the Court finds
that it lacks subject matter jurisdiction over this case and remands to the state court.

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BACKGROUND
On August 16, 2005, Bedasee, and Sandie Bedasee, secured a $444,000
mortgage from Plaintiff to purchase real property in Naples, Florida. Approximately two
years later, they defaulted on the mortgage. (Doc. #2 at ¶ 6). Plaintiff then initiated this
foreclosure suit on February 22, 2008. (Doc. #1-1 at 1). Within four months, the state
court granted summary judgment in Plaintiff’s favor, entered final judgment of foreclosure,
and scheduled the foreclosure sale. The sale took place on June 10, 2009, and Plaintiff
filed a Certificate of Sale the same day. (Doc. #1-1).
Since the foreclosure, Bedasee, and/or Sandie Bedasee, have been challenging
the judgment. They appealed several times to the Florida Second District Court of Appeal
and Florida Supreme Court to no avail. They also filed numerous claims in this Court
challenging the foreclosure in one way or another.2 This instant removal is the latest
installment in Bedasee’s quest to defeat the foreclosure judgment, which have been
rejected.
LEGAL STANDARD
Federal courts are courts of limited jurisdiction. See Russell Corp. v. Am. Home
Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). A federal court is thus “‘obligated to
inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.’” Cadet v.
Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) (quoting Galindo-Del Valle v. Att'y Gen.,
213 F.3d 594, 599 (11th Cir. 2000)). That obligation applies equally in removal cases.
See Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1245 (11th

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See Fremont Investment & Loan v. Bedasee, No. 2:16-cv-268-FtM-38MRM (M.D. Fla. Apr. 22, 2016);
Bedasee v. Fremont Investment & Loan Co., et al., No. 2:16-cv-145-FtM-29MRM (M.D. Fla. Feb. 19, 2016);
Fremont Investment & Loan v. Bedasee, No. 2:15-cv-501-FtM-29MRM (M.D. Fla. Aug. 20, 2015); Bedasse
v. Fremont Investment & Loan, No. 2:09-cv-111-FtM-29SPC (M.D. Fla. Feb. 23, 2009).

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Cir. 2004) (“This court has joined its sister circuits in holding that based on the language
of § 1447(c) the district court may not sua sponte decide to remand the case for any
procedural defect other than lack of subject matter jurisdiction.”).
Courts strictly construe the statutory right of removal. See Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). So when a federal court’s jurisdiction is
doubtful, any doubts are resolved in favor of remand. See Pacheco de Perez v. AT&T
Co., 139 F.3d 1368, 1373 (11th Cir. 1998). The removing parties bear the burden of
demonstrating the propriety of removal. See Williams v. Best Buy Co., Inc. 269 F.3d
1316, 1319 (11th Cir. 2001). When the defendant fails to do so, the case must be
remanded. See id. at 1321.
The procedures for removing a case to federal court are outlined in 28 U.S.C.
§ 1446(b)(1). That section provides,
[t]he notice of removal of a civil action or proceeding shall be filed within 30
days after the receipt by the defendant, through service or otherwise, of a
copy of the initial pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the service of
summons upon the defendant if such initial pleading has then been filed in
court and is not required to be served on the defendant, whichever period
is shorter.
Id. If the case is not removable based on the initial pleading, “a notice of removal may be
filed within 30 days after receipt by the defendant, through service or otherwise, of a copy
of an amended pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable.”
§ 1446(b)(3).

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Id. at

DISCUSSION
Liberally construing the Notice of Removal, Bedasee appears to assert
constitutional challenges to an unspecified Florida “statutory scheme” governing
foreclosure proceedings.

(Doc. #1).

Bedasee states the basis for subject matter

jurisdiction in the Civil Cover Sheet (Doc. #1-2) and the Notice of Removal (Doc. #1) as
federal question jurisdiction under 28 U.S.C. § 1331, asserting that the underlying state
court proceeding violated his due process, equal protection, and civil rights.3
District courts have “original jurisdiction of all civil cases arising under the
Constitution, laws, or treaties of the United States.” Id. (emphasis added). “The wellpleaded-complaint rule has long governed whether a case ‘arises under’ federal law for
purposes of § 1331.” Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S.
826, 830 (2002) (citation omitted). That rule “provides that whether a case 'arises under'
federal law must be determined from what necessarily appears in the plaintiff's statement
of his own claim[.]” Id. (citation omitted). In other words, “federal jurisdiction generally
exists ‘only when a federal question is presented on the face of the plaintiff's properly
pleaded complaint.;” Id. at 831 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (emphasis in original)).
Here, it is undisputed that the Complaint does not assert any claim arising under
federal law. (Doc. #2). Nor has Plaintiff filed any amended pleading that presents a
federal question.

(Doc. #2). To the extent Bedasee considers his constitutional

challenges to be counterclaims, that strategy is flawed because a counterclaim cannot
serve as the basis for removal. See id. (stating “a counterclaim—which appears as part

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The Court reads no allegations of citizenship in the Notice of Removal, and thus it finds no assertion of
removal based on diversity of citizenship under 28 U.S.C. § 1332.

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of the defendant’s answer, not as part of the plaintiff's complaint—cannot serve as the
basis for ‘arising under’ jurisdiction.” (citations omitted)).
In addition, removing this case nearly seven years after the entry of the final
judgment of foreclosure is untimely. “Although untimeliness is a procedural defect that
may not subject a complaint to sua sponte remand, the Court is nonetheless without
jurisdiction to proceed, even if removal were timely (which is not the case).” HSBC Bank
USA, N.A. v. Anderson, No. 6:12-CV-1309-ORL-22, 2012 WL 4896686, at *3 (M.D. Fla.
2012) report and recommendation adopted, 2012 WL 4899680 (M.D. Fla. 2012). Further,
Bedasee did not obtain the consent of all defendants for the removal. See 28 U.S.C. §
1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or consent to the
removal of the action.”).
What is more, the Florida state court has already entered a final judgment against
Bedasee, and this Court has no jurisdiction to relieve them from that judgment. Bedasee
cannot challenge the state court’s final decision in the foreclosure proceeding without
running afoul of the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
Under the Rooker-Feldman doctrine, a federal district court lacks subject matter
jurisdiction to review a final state court decision. See Nicholson v. Shafe, 558 F.3d 1266,
1270-72 (11th Cir. 2009). The doctrine divorces federal courts from reviewing “state court
final judgments because that task is reserved for state appellate courts or, as a last resort,
the United States Supreme Court.” Nivia v. Nation Star Mortg., LLC, 620 F. App’x 822,
824 (11th Cir. 2015); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

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280, 284 (2005) (stating a federal district court lacks jurisdiction over “cases brought by
state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and
rejection of those judgments”). As such, removal in this case is unavailable.
Finally, this Court's Order should not come as a surprise to Bedasee. In the past
two years, he has filed nearly identical notices of removal in an attempt to challenge the
underlying mortgage foreclosure action on constitutional grounds.

See Fremont

Investment & Loan v. Bedasee, No. 2:16-cv-268-FtM-38MRM (M.D. Fla. Apr. 22, 2016);
Fremont Investment & Loan Co. v. Bedasee, No. 2:15-cv-501-FtM-29MRM (M.D. Fla.
Aug. 20, 2015). The district court in those case remanded for lack of subject matter
jurisdiction. Consequently, Bedasee is trying for another bite at the apple in the instant
removal, but yet again fares no better.
In sum, because the Court is devoid of subject matter jurisdiction, it remands this
case to the Florida state court.
Accordingly, it is now
ORDERED:
(1) This case is DISMISSED for lack of subject matter jurisdiction and REMANDED
to the Circuit Court for the Twentieth Judicial Circuit in and for Collier County,
Florida.
(2) The Clerk is DIRECTED to transmit a certified copy of this Order to the Clerk
of the Court of the Twentieth Judicial Circuit in and for Collier County, Florida.
(3) The Clerk is DIRECTED to terminate any pending motions and close the case.

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DONE and ORDERED in Fort Myers, Florida this 4th day of October, 2016.

Copies: All Parties of Record

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