898 Fifth Avenue South Holdings, LLC v. Pear

Filing 28

ORDER overruling 18 Defendant's Objection and denying as moot 24 Motion for Summary Judgment, 25 Motion for Hearing/Conference, 26 Motion for Summary Judgment, and 27 Motion for Ruling. This case is remanded to the County Court of the Twentieth Judicial Circuit in and for Collier County, Florida. The Clerk of Court is DIRECTED to transmit a certified copy of this order to the Collier County, Florida, Clerk of Court. The Court retains jurisdiction as to any requests for attorneys' fees and expenses (see Doc. 17 at 3-4). See order for details. Signed by Judge John L. Badalamenti on 2/5/2024. (MAG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
898 Fifth Avenue South Holdings, LLC,
Plaintiff,
v.

Case No.: 2:23-cv-576-JLB-NPM

Clark John Pear,
Defendant.
_______________________________________/
ORDER
Defendant Clark John Pear has filed an objection (Doc. 18) to the Magistrate
Judge’s Order (Doc. 17) remanding this landlord-tenant action to state court. After
an independent review of the record, the Court OVERRULES Defendant’s
objection (Doc. 18). See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a), (b).
In May 2023, Plaintiff 898 Fifth Avenue South Holdings, LLC filed a twocount complaint in county court against Mr. Pear seeking to evict him and collect
damages “not exceed[ing]” $30,000 for breaching the lease. (See Doc. 15 at 1–3).
Mr. Pear removed this action to this Court on July 31, 2023. (See Doc. 1). But Mr.
Pear has failed to establish any basis for this Court’s jurisdiction. See Adventure
Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008) (reiterating that
the “removing defendant bears the burden of proving proper federal jurisdiction”
and that “[a]ny doubts about the propriety of federal jurisdiction should be resolved
in favor of remand to state court”) (internal quotation marks and citations omitted).

A removing defendant “must show that the plaintiffs’ complaint, as it existed
at the time of removal, provides an adequate basis for the exercise of federal
jurisdiction.” Id. at 1295 (emphasis added). As the Supreme Court has explained,
“[t]he presence or absence of federal-question jurisdiction is governed by the ‘wellpleaded 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); accord Adventure
Outdoors, 552 F.3d at 1295 (“In determining whether jurisdiction exists under 28
U.S.C. § 1331, a court must look to the well-pleaded complaint alone”). But here,
there is no federal question apparent on the face of Plaintiff’s complaint. (See Doc.
15).
Mr. Pear instead appears to contend that this Court has federal-question
jurisdiction based on his own asserted “complaint” and his asserted defenses. (See
Doc. 18 at 1–2, 22; see also Docs. 1, 9, 13, 14, 16). 1 But “[t]he existence of federal
jurisdiction is tested at the time of removal” and “must be apparent from the face of
the [plaintiff’s] well-pleaded complaint and not from a defense or anticipated
defense.” Adventure Outdoors, 552 F.3d at 1294–95; Newton v. Capital Assur. Co.,

For example, in his “complaint,” Mr. Pear alleges federal constitutional and RICO
violations (see Doc. 18 at 1–21), and he has argued that federal-question jurisdiction
exists to address (i) the alleged violations of his constitutional rights by the county
court judge (see, e.g., Doc. 1 at 1–2; Doc. 18 at 10–12) and by Plaintiff (see, e.g., Doc.
9 at 1; Doc. 13 at 4–6), and (ii) Plaintiff’s failure to provide a safe and habitable
residence under the Uniform Residential Landlord and Tenant Act (see Docs. 14,
16).
1

2

Inc., 245 F.3d 1306, 1309 (11th Cir. 2001). Mr. Pear has accordingly not established
any basis for this Court’s jurisdiction under 28 U.S.C. § 1331.
Mr. Pear also now suggests in his objections to the Magistrate Judge’s Order
that this Court has diversity jurisdiction under 28 U.S.C. § 1332. (See Doc. 18 at 7).
But Mr. Pear’s conclusory assertion, at the very least, fails to meet his burden to
establish the statutory requirements for such jurisdiction. See, e.g., Adventure
Outdoors, 552 F.3d at 1294 (reiterating removing party’s burden). 2

CONCLUSION
Accordingly, for the foregoing reasons:
1.

Defendant’s objection (Doc. 18) is OVERRULED.

2.

This case is remanded to the County Court of the Twentieth Judicial

Circuit in and for Collier County, Florida. The Clerk of Court is DIRECTED to
transmit a certified copy of this order to the Collier County, Florida, Clerk of Court.
3.

Mr. Pear’s motions for summary judgment and for a hearing (Docs. 24,

25, and 26) and Plaintiff’s motion for ruling (Doc. 27) are DENIED as moot.

The Court further notes that Mr. Pear states that he is a “Citizen of Florida.”
(Doc. 18 at 7). The removal statute provides, however, that “[a] civil action
otherwise removable solely on the basis of the jurisdiction under section 1332(a) of
this title may not be removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action is brought.” 28
U.S.C. § 1441(b)(2) (emphasis added).
2

3

4.

The Court retains jurisdiction as to any requests for attorneys’ fees and

expenses (see Doc. 17 at 3–4).
ORDERED at Fort Myers, Florida on February 5, 2024.

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