US Bank National Association v. Kelly et al
Filing
29
OPINION AND ORDER granting 25 Motion to Remand to State Court and the Clerk is directed to remand the action 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 shall close the case. Signed by Judge John E. Steele on 1/24/2024. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
US
BANK
NATIONAL
ASSOCIATION, as Trustee for
Credit Suisse First Boston
CSFB 2005-11,
Plaintiff,
v.
Case No:
BARBARA
ANN
KELLY
GREGORY B. MYERS,
2:23-cv-504-JES-NPM
and
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Amended
Response to Order to Show Cause and Motion to Remand Under the
Rooker-Feldman Doctrine (Doc. #25) filed on December 28, 2023.
The Court granted an extension of time through January 23, 2024,
5:00 PM, to respond.
(Doc. #27.)
Defendant Gregory B. Myers
filed a Response in Opposition to Motion to Remand (Doc. #28) on
January 23, 2024.
Plaintiff
filed
the
underlying
state
court
Foreclosure Complaint (Doc. #10) on December 17, 2009.
Mortgage
The trial
was set for January 15, 2014, but continued several times until
February 20, 2015.
On September 10, 2015, by Findings of Fact,
Conclusions of Law, and Final Judgment of Foreclosure, plaintiff
was awarded $2,753,490.90, and a sale date for 700 Gulf Shore
Boulevard, Naples, Florida, was set for October 5, 2015.
Due to
intervening interlocutory appeals and repeated bankruptcy filings
by both defendants, the foreclosure sale was cancelled and has
still not occurred.
filed
by
Barbara
The latest and ninth Voluntary Petition was
Ann
Kelly
on
April
19,
2023,
in
Maryland
Bankruptcy Court, years after the final foreclosure judgment was
issued.
A hearing was held on August 1, 2023, in Maryland
Bankruptcy Court to consider lifting the stay.
See In re Kelly,
23-12700 (Bankr. Md.).
On July 9, 2023, Mr. Myers removed the case under 28 U.S.C.
§ 1334(b) asserting that the case arises under or arises in or is
related to Barbara Ann Kelly’s petition for bankruptcy filed in
Maryland and the automatic stay has not been lifted.
Gregory B.
Myers does not assert any interest in that bankruptcy filing and
Barbara Ann Kelly did not join in the removal.
On December 11,
2023, the Bankruptcy Court for the District of Maryland dismissed
the bankruptcy case with prejudice and barred refiling for four
years.
(Doc. #23-1.)
“The 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
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and is not required to be served on the defendant, whichever period
is shorter.”
28 U.S.C. § 1446(b)(1).
Mr. Myers argues that the
removal was based on the case arising under title 11 or arising or
related to title under 28 U.S.C. § 1334(b) because both Mr. Myers
and Ms. Kelly had bankruptcy cases pending at the time of removal.
The removal did not occur within 30 days of service of the initial
pleading or within 30 days of the filing of the bankruptcy petition
by Barbara Kelly.
Therefore, the removal was untimely.
Additionally, for removal solely under 28 U.S.C. § 1441(a)
based on original jurisdiction, “all defendants who have been
properly joined and served must join in or consent to the removal
of the action.”
28 U.S.C. § 1446(b)(2)(A).
“The unanimity rule
requires that all defendants consent to and join a notice of
removal in order for it to be effective.”
Bailey v. Janssen
Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir. 2008).
Each
defendant has 30 days after service to file a notice of removal,
or a later-served defendant may file a notice of removal.
The
case is otherwise removable within 30 days of an “amended pleading,
motion, order or other paper” making the case removable.
28 U.S.C.
§
unanimity
1446(b)(3).
“A
technical
defect
related
to
the
requirement may be cured by opposing a motion to remand prior to
the entry of summary judgment.”
Stone v. Bank of New York Mellon,
N.A., 609 F. App'x 979, 981 (11th Cir. 2015).
Defendant Barbara
Ann Kelly did not join the removal and Mr. Myers does not indicate
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whether she consented to a removal.
Mr. Myers is not an attorney
authorized to represent Barbara Ann Kelly and Barbara Ann Kelly
has not appeared in this removed case.
The removed case went to
trial, concluded, and damages were awarded before the attempted
removal by Mr. Myers.
Defendant argues that the previously assigned District Judge
issued an Order to show cause and found subject matter jurisdiction
was present after reviewing the Supplement to Notice of Removal
(Doc. #3).
By Endorsed Order, subject matter jurisdiction was
found satisfied “at this time.”
defendant
satisfied
the
(Doc. #5.)
requirement
to
The Court finds that
provide
a
basis
for
jurisdiction but that the issue was not conclusive, and plaintiff
is seeking a remand.
Defendant argues that the request for remand is untimely.
The
request
for
remand
based
jurisdiction is not untimely.
on
a
lack
of
subject
matter
“A motion to remand the case on the
basis of any defect other than lack of subject matter jurisdiction
must be made within 30 days after the filing of the notice of
removal under section 1446(a). If at any time before final judgment
it
appears
that
the
district
court
lacks
jurisdiction, the case shall be remanded.”
(emphasis added).
subject
matter
28 U.S.C. § 1447(c)
Plaintiff argues a lack of subject matter
jurisdiction and not a procedural defect.
is timely filed.
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Therefore, the motion
Plaintiff argues that the state court rendered a full and
complete judgment on all issues leaving nothing to be removed that
would not be seeking a direct review of the state court rulings.
“First,
federal
district
courts
are
courts
of
original
jurisdiction—they generally cannot hear appeals. [] And second,
only
the
Supreme
Court
can
“reverse
or
modify”
state
court
judgments; neither district courts nor the circuits can touch
them.”
Behr v. Campbell, 8 F.4th 1206, 1210 (11th Cir. 2021).
The Rooker–Feldman 1 doctrine makes clear that federal district
courts cannot review state court final judgments because that task
is reserved for state appellate courts or, as a last resort, the
United States Supreme Court.
1260 (11th Cir. 2009).
Casale v. Tillman, 558 F.3d 1258,
Post-Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280 (2005), Courts have “have rested on
Feldman’s meaning: a “claim that at its heart challenges the state
court decision itself—and not the statute or law which underlies
that decision—falls within the doctrine because it ‘complains of
injuries caused by state-court judgments’ and ‘invites review and
rejection of those judgments.’”
Behr, 8 F.4th at 1211.
Defendant
argues that the state court proceedings were still pending because
appeals were still pending at the time of removal.
The pendency
See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482,
103 S. Ct. 1303, 1315 (1983); Rooker v. Fid. Trust Co., 263 U.S.
413, 415–16, 44 S. Ct. 149, 150 (1923).
1
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of appeals does not change the fact that the trial court had only
to execute the judgment.
Defendant asserts that the statement in the Complaint that
“[t]his firm has complied with the notice requirement of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692, et seq, as
amended,” Doc. #10, ¶ 2, means that he has a cause of action under
the FDCPA.
There are no independent claims by defendants to be
litigated as the case had concluded before removal, and plaintiffs
are not seeking to have the federal court litigate a related issue.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005) (“Rooker–Feldman does not otherwise override or supplant
preclusion doctrine or augment the circumscribed doctrines that
allow federal courts to stay or dismiss proceedings in deference
to state-court actions.”).
In this case, the Court lacks jurisdiction to review the final
judgment on “foreclosed-upon property” under Rooker-Feldman.
See,
e.g., Kohler v. Garlets, 578 F. App'x 862, 864 (11th Cir. 2014).
Accordingly, it is hereby
ORDERED:
1. The Motion to Remand Under the Rooker-Feldman Doctrine
(Doc. #25) is GRANTED and the Clerk is directed to remand
the action 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.
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2. 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 January 2024.
Copies:
Defendants
Counsel of Record
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24th
day
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