998 SW 144th Court Rd, LLC v. Lovejoy et al

Filing 7

ORDER: This action is REMANDED to state court. The Clerk is directed to remand this case to the Fifth Judicial Circuit in and for Marion County, Florida, and provide that court a copy of this Order. All pending motions are denied as moot and the clerk is directed to close this case. Signed by Judge James S. Moody, Jr on 6/1/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

998 SW 144TH COURT RD., LLC,
Plaintiff,
v.

Case No: 5:15-cv-225-Oc-30PRL

SARAH K. LOVEJOY, et al.,
Defendants.
________________________________/

ORDER
THIS CAUSE comes before the Court sua sponte upon review of the file. Plaintiff
filed a verified second amended foreclosure complaint on June 24, 2014, against
Defendants in the Fifth Judicial Circuit in and for Marion County, Florida, alleging breach
of contract and mortgage foreclosure. (Docs. 2, 6). Defendants William C. Mawhinney
and Randall A. Ralicki (collectively the “Removing Defendants”) filed a notice of removal
on May 4, 2015, alleging subject matter jurisdiction under 28 U.S.C. §§ 1331, 1332. (Docs.
1, 4).
A civil case filed in state court may be removed to federal court by a defendant if
the case could have originally been brought in federal court. See 28 U.S.C. § 1441(a).
Federal courts have “an independent obligation” in every case “to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from any party.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006).

Here, Plaintiff alleges a claim for breach of contract and mortgage foreclosure under
Florida law. (Docs. 2, 6). Thus, the verified second amended foreclosure complaint
presents no federal question, and there is no subject matter jurisdiction pursuant to § 1331. 1
Additionally, according to Plaintiff’s verified second amended foreclosure complaint, all
parties are Florida residents. The Removing Defendants have presented no evidence to the
contrary. 2 Thus, because the Removing Defendants have not established diversity of
citizenship, they have also failed to establish subject matter jurisdiction pursuant to § 1332.
See 28 U.S.C. § 1332(a) (providing that diversity jurisdiction is established by
demonstrating that there is complete diversity of citizenship and the amount in controversy
exceeds $75,000); see also Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010) (holding that the
burden of proving diversity of citizenship rests with the party asserting diversity
jurisdiction). 3

The Removing Defendants have failed to establish subject matter

jurisdiction, and, therefore, removal is improper.
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. This action is REMANDED to state court.

1

The Removing Defendants allege that they have asserted a counterclaim presenting a federal
question. (Doc. 1, Ex. B). However, federal counterclaims are not sufficient to confer federal question
jurisdiction under § 1331. See Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 832
(2002).
2
The Removing Defendants merely assert that various entities involved in Plaintiff’s allegations
are federally charted or federally regulated. But such allegations are not sufficient to establish subject
matter jurisdiction.
3
The Court further notes that the Removing Defendants’ removal is not timely pursuant to 28 U.S.C.
§ 1446(b)(3), which requires that the notice of removal be filed within thirty days after receipt by the
defendant of a copy of an amended pleading “from which it may first be ascertained that the case is one
which is or has become removable.” Plaintiff’s second verified amended complaint was filed on June 24,
2014, and the Removing Defendants did not file their notice of removal until May 4, 2015.

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2. The Clerk is directed to remand this case to the Fifth Judicial Circuit in and for
Marion County, Florida, and provide that court a copy of this Order.
3. All pending motions are denied as moot and the clerk is directed to close this
case.
DONE and ORDERED in Tampa, Florida, this 1st day of June, 2015.

Copies furnished to:
Counsel/Parties of Record

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