Shiriaev et al v. Wells Fargo Bank, N.A. et al

Filing 7

ORDER denying 3 Motion for leave to proceed in forma pauperis/affidavit of indigency; denying as moot 6 Emergency Motion to Enforce the Notice of Removal. The Clerk 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. The Clerk is further directed to close the case. Signed by Judge John E. Steele on 9/28/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VICTOR SHIRIAEV
SWARTZ,

and

MARY

Plaintiffs,
v.

Case No:

2:17-cv-530-FtM-29CM

WELLS
FARGO
BANK,
N.A.,
ROBERT WUNKER, TEPHAINE D.
WHITMORE, SUSAN W. FINDLEY,
NALIRI
SINGH,
JERRET
I.
BERFOND, SARAH M. BARBACCIA,
CHRISTOPHER R. KASPER, and
ALDRIDGE CONNORS LLP,
Defendants.
ORDER
This matter comes before the Court on review of the file.

On

September 26, 2017, Mary Swartz and Victor Shiriaev, who identify
themselves as “petitioners”, filed a Notice of Removal (Doc. #1)
purporting to remove Wells Fargo, N.A. v. Shiriaev, et al., Case
No. 10-CA-54593, initiated on April 23, 2010 in the Lee County
Circuit Court to federal court.

Petitioners argue that the Notice

is timely filed within 30 days of a motion filed in Circuit Court
that alerted “petitioners” to a federal issue.
This is not the first attempt at removal of this case by these
petitioners.

On July 18, 2017, Victor Shiraev and Mary Swartz

attempted to remove this same case.

See Wells Fargo, N.A. v.

Shiriaev
2017).

&

Swartz,

Case

No.

2:17-cv-404-FTM-29MRM

(M.D.

Fla.

With the first attempt, petitioners failed to provide a

copy of any form of Complaint.

The Court issued an Opinion and

Order remanding the matter on this basis, and also for lack of
jurisdiction, and other deficiencies.
case,

petitioners

provided

a

(Id., Doc. #4.)

Complaint

entitled

In this

“Plaintiffs’

Original Complaint – Civil RICO” (Doc. #2) against Wells Fargo,
N.A., and others.

This is not Complaint from the removed case,

and is in fact a Complaint by petitioners against the plaintiff in
the state court case.

If plaintiffs wish to initiate a Complaint

in federal court, they may do so in a new case with a civil cover
sheet.

However, their own Complaint would not be a removal from

the state court action.
Recognizing

that

This case will also be remanded.
Mary

Swartz

and

Victor

Shiriaev

are

proceeding unrepresented, the Court will take this opportunity to
caution petitioners that further attempts to remove Case No. 10CA-54593 could result in sanctions.

Under Federal Rule of Civil

Procedure, a party may be sanctioned for filing a pleading with no
reasonable legal or factual basis, or if the filing is for an
improper purpose such as harassment.

Thomas v. Evans, 880 F.2d

1235, 1240 (11th Cir. 1989) (noting that Rule 11 also applies to
pro se parties).
to

control

the

Further, “[c]ourts have the inherent authority
proceedings

before

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them,

which

includes

the

authority

to

impose

“reasonable

and

appropriate”

sanctions.”

Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332,
1335 (11th Cir. 2002) (citing Malautea v. Suzuki Motor Co., Ltd.,
987 F.2d 1536, 1545 (11th Cir.1993)).

To exercise this power, the

Court must make a finding of bad faith, which may be demonstrated
by a “continual and flagrant abuse of the judicial process.”
at 1336.

Id.

See also Byrne v. Nezhat, 261 F.3d 1075, 1121 (11th Cir.

2001) (a finding of bad faith is appropriate if a party “raises a
frivolous argument, or argues a meritorious claim for the purpose
of harassing an opponent”).

The Court will not impose sanctions

at this time but anticipates no further attempts to remove Case
No. 10-CA-54593.
Accordingly, it is hereby
ORDERED:
1. Mary Swartz and Victor Shiriaev’s Affidavits of Indigency,
construed as requests to proceed in forma pauperis (Doc.
#) are DENIED as the Court finds that it does not have
jurisdiction.
2. Mary Swartz and Victor Shiriaev’s Emergency Motion to
Enforce the Notice of Removal (directed to 20th Judicial
Circuit Court in and for Lee County) (Doc. #6) filed on
September 28, 2017 is DENIED as moot.

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3. The Clerk 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.
4. The Clerk is further directed to terminate all pending
motions and deadlines, and to close the case.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2017.

Copies:
Victor Shiriaev
May Swartz
Counsel of Record

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28th

day