Gillespie v. Google LLC et al

Filing 19

ORDER directing the Clerk of the Court to remand this case, to transmit a certified copy of this Order to the clerk of the state court, and to close this case. See Order for details. Signed by Judge Marcia Morales Howard on 3/26/2024. (WT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
NEIL J. GILLESPIE,
Plaintiff,
v.

Case No. 5:24-cv-101-MMH-PRL

GOOGLE LLC, a Foreign Limited
Liability Company, ALPHABET
INC., a Foreign Profit Corporation,
VERIZON COMMUNICATIONS,
INC., a Foreign Limited Liability
Company, VERIZON WIRELESS
SERVICES, LLC, a Foreign Limited
Liability Company, and
TRACFONE WIRELESS, INC., a
Foreign Profit Corporation,
Defendants.
ORDER
THIS CAUSE is before the Court sua sponte. Plaintiff Neil J. Gillespie
initiated this action on February 1, 2024, by filing his Comlaint [sic] for
Replevin (Doc. 11; Complaint) in the Circuit Court of the Fifth Judicial Circuit
in and for Marion County, Florida. See generally Complaint. 1 Defendants

Defendants filed the Complaint as part of a composite exhibit. The Complaint is on
pages 6–32 of the cited document. For ease of reference, the Court’s citations to page
numbers in documents in this record refer to the CM-ECF-stamped page numbers located at
the top of each page, rather than a document’s internal page numbers, if any. The Court’s
citations to paragraph numbers in the Complaint refer to the paragraphs in pages 6–32.
1

Alphabet, Inc. and Google LLC removed the action to this Court on February
28, 2024, by filing their Notice of Removal (Doc. 1; Notice). 2 In the Notice,
Defendants assert that “[t]he allegations set forth in Plaintiff’s Complaint
render this a civil action arising under” federal law, “specifically 42 U.S.C.
§ 1983 and 18 U.S.C. § 245(b)(1)(A).”

Notice ¶ 4.

Accordingly, Defendants

argue that the Court has federal question jurisdiction over these claims, and
may exercise supplemental jurisdiction over Gillespie’s state law claims. See
id. at 1 (citing 28 U.S.C. § 1331). Upon independent review of the Complaint,
the Court is unable to determine the nature of Gillespie’s claims, and therefore
is unable to conclude that it has subject matter jurisdiction over this action.
Accordingly, the case is due to be remanded to state court.
Federal courts are courts of limited jurisdiction and therefore have an
obligation to inquire into their subject matter jurisdiction. See Kirkland v.
Midland Mortgage Co., 243 F.3d 1277, 1279–80 (11th Cir. 2001).

This

obligation exists regardless of whether the parties have challenged the
existence of subject matter jurisdiction. See Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 410 (11th Cir. 1999) (“[I]t is well settled that a federal court
is obligated to inquire into subject matter jurisdiction sua sponte whenever it
These Defendants represent that Gillespie has not properly served the summons or
Complaint on any of the five Defendants in this action. See Notice ¶¶ 3, 5. While Alphabet
and Google assert that they are not required to obtain the consent of the other three
Defendants before removing this action, they nonetheless contend that the remaining
Defendants consent to removal. Id. ¶ 5.
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may be lacking.”). A defendant may remove a case from a state court to federal
court if the federal district court has original jurisdiction over the action. 28
U.S.C. § 1441(a). Original jurisdiction exists where a federal district court has
“at least one of three types of subject matter jurisdiction: (1) jurisdiction under
a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C.
§ 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” PTA-FLA,
Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016) (quoting Baltin v.
Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997)). Notably, when a
defendant removes an action to federal court, the defendant bears the burden
of establishing that the court has subject matter jurisdiction.

Conn. State

Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir.
2009). And in assessing whether a defendant has met this burden, “all doubts
about jurisdiction should be resolved in favor of remand to state court.” City
of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012)
(quoting Univ. of S. Ala., 168 F.3d at 411). In their Notice, Defendants seek to
invoke the Court’s federal question jurisdiction under § 1331, which provides:
“The district courts shall have original jurisdiction over all civil actions arising
under the Constitution, laws or treaties of the United States.” See Notice at 1;
28 U.S.C § 1331.
In determining whether a claim arises under federal law for purposes of
§ 1331, the Court is guided by the “well-pleaded complaint rule.” Aetna Health

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Inc. v. Davila, 542 U.S. 200, 207 (2004). That rule demands that a federal
question appear on the face of the plaintiff’s well-pleaded complaint. Gully v.
First Nat’l Bank, 299 U.S. 109, 112–13 (1936); see also Kemp v. Int’l Bus. Mach.
Corp., 109 F.3d 708, 712 (11th Cir. 1997) (“A case does not arise under federal
law unless a federal question is presented on the face of plaintiff’s complaint.”).
Generally, a federal question appears on the face of the complaint when federal
law creates the cause of action. Pacheco de Perez v. AT&T Co., 139 F.3d 1368,
1373 (11th Cir. 1998). To meet the burden of establishing the existence of
proper federal jurisdiction, the removing “defendants must show that the
plaintiff[’s] complaint, as it existed at the time of removal, provides an adequate
basis for the exercise of federal jurisdiction.”

Adventure Outdoors Inc. v.

Bloomberg, 552 F.3d 1290, 1294–95 (11th Cir. 2008); see also Ehlen Floor
Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011).

Because a

federal question must appear on the face of the complaint, a federal defense
alone will not support removal. Kemp, 109 F.3d at 712.
Nevertheless, “even when a plaintiff has pled only state-law causes of
action, he may not avoid federal jurisdiction if either (1) his state-law claims
raise substantial questions of federal law or (2) federal law completely preempts
his state-law claims.” 3 Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1290

Defendants do not argue that federal law preempts Gillespie’s state-law claims.
Rather, Defendants assert that his allegations “render this a civil action arising under” federal
3

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(11th Cir. 2004) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1, 13 (1983)).

A state-law claim raises a substantial question of

federal law “if a federal issue is: (1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution in federal court without disrupting the
federal–state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251,
258 (2013); Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S.
374, 383 (2016). Importantly, however, “‘[t]he mere presence of a federal issue
in a state cause of action does not automatically confer federal-question
jurisdiction.’” Dunlap, 381 F.3d at 1290 (quoting Merrell Dow Pharms., Inc. v.
Thompson, 478 U.S. 804, 813 (1986)). Rather, to confer federal jurisdiction,
“the state-law claim must ‘really and substantially involve[ ] a dispute or
controversy respecting the validity, construction or effect of [federal] law.’” Id.
(quoting Mobile Oil Corp. v. Coastal Petroleum Co., 671 F.2d 419, 422 (11th Cir.
1982)); Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
314 (2005).
Here, while Defendants contend that Gillespie asserts claims under
federal law in his Complaint, the Court is not so convinced. Gillespie styled
his Complaint as an action “for Replevin” under state law. See Complaint at
6. While Gillespie also refers to the First Amendment to the United States

law. See Notice at 2. Accordingly, federal preemption is not implicated in this case.

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Constitution and multiple federal statutes, see id. ¶¶ 78–81, and Gillespie seeks
punitive damages on the grounds that Google “breached a duty of care to the
Plaintiff under the Constitution and laws of Florida, and of the United States,
including the First Amendment,” id. ¶ 84, the vague nature of his allegations
makes it unclear whether Gillespie actually seeks to assert any cause of action
which arises under federal law. Notably, mere references to federal laws or
rights, even if included as an element of a state law claim, do not “transform
what are in all other respects state laws claims into federal claims.” Hill v.
Marston, 13 F.3d 1548, 1550 (11th Cir. 1994). Indeed, the Eleventh Circuit
has explained that the Supreme Court in Moore v. Chesapeake & Ohio Ry. Co.,
291 U.S. 205, 214–15 (1934), made “clear that violation of a federal standard as
an element of a state tort recovery does not fundamentally change the state tort
nature of the action.” Hill, 13 F.3d at 1550.
At least on this record, Gillespie’s conclusory and ambiguous references
to federal law are insufficient to establish what claims Gillespie seeks to assert,
much less the actual legal basis upon which he relies. For this reason, the
Court cannot conclude that Gillespie’s “[C]omplaint, as it existed at the time of
removal, provides an adequate basis for the exercise of federal jurisdiction.”
See Adventure Outdoors, 552 F.3d at 1294–95.

Because “all doubts about

jurisdiction should be resolved in favor of remand to state court,” City of

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Vestavia Hills, 676 F.3d at 1313, this case is due to be remanded to the state
court in which it was filed. 4
Accordingly, it is
ORDERED:
1.

The case is REMANDED to the Circuit Court of the Fifth Judicial
Circuit in and for Marion County, Florida.

2.

The Clerk of the Court is DIRECTED to transmit a certified copy
of this Order to the clerk of that court.

3.

The Clerk of the Court is further DIRECTED to terminate all
pending motions and close the file.

DONE AND ORDERED in Chambers on March 26, 2024.

lc31
Copies to:
Counsel of Record
Pro Se Parties
Clerk, Circuit Court, Fifth Judicial Circuit,
in and for Marion County, Florida
If, through future developments in state court, Defendants ascertain that the case is
one which is or has become removable, Defendants may consider filing another notice of
removal, if timely, pursuant to 28 U.S.C. § 1446.
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