U.S. Bank National Association v. Windsor et al

Filing 42

ORDER adopting Report and Recommendations - re 32 Report and Recommendations; Denying as moot 4 Motion for Leave to Proceed in forma pauperis; Granting 21 Motion to Remand to State Court. This case is REMANDED to the Circuit Court of the Ninth Judicial Circuit, in and for Osceola County, Florida, Case Number 15-CA-2304 MF. All other pending motions are DENIED as moot. The Clerk is directed to close this file. Signed by Judge Carlos E. Mendoza on 6/6/2016. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

U.S. BANK NATIONAL
ASSOCIATION,
Plaintiff,
v.

Case No: 6:15-cv-1895-Orl-41GJK

EDWARD LEE WINDSOR, VIVIANA
WINDSOR, ALL UNKNOWN PARTIES
CLAIMING INTERESTS BY,
THROUGH, UNDER OR AGAINST A
NAMED DEFENDANT TO THIS
ACTION, OR HAVING OR CLAIMING
TO HAVE ANY RIGHT, TITLE OR
INTEREST IN THE PROPERTY
HEREIN DESCRIBED, UNITED
STATES OF AMERICA, FEDERAL
TRADE COMMISSION, STATE OF
FLORIDA OFFICE OF THE
ATTORNEY GENERAL, CAPITAL
ONE BANK (USA), NATIONAL
ASSOCIATION, UNKNOWN TENANT
#1, and UNKNOWN TENANT #2,
Defendants.
/
ORDER
THIS CAUSE is before the Court upon review of the record. On January 5, 2016, United
States Magistrate Judge Gregory J. Kelly ordered Defendant Edward Lee Windsor to show cause
why this case should not be remanded for want of subject-matter jurisdiction. (Jan. 5, 2016, Order,
Doc. 22). Defendant responded. (See Resp., Doc. 26). Thereafter, Judge Kelly submitted a Report
and Recommendation (Doc. 32), in which he recommends that this case be remanded to state court.
(Id. at 7). Defendant filed an Objection (Doc. 36) to the Report and Recommendation, raising
substantially the same arguments presented in his response to the January 5, 2016, Order.

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After a de novo review, the Court agrees with the findings of fact and conclusions of law
in the Report and Recommendation. First, Defendant’s objections with respect to diversity
jurisdiction are without merit. Even taking as true Defendant’s allegations that Plaintiff is a citizen
of Ohio, Defendant has neither alleged his state of domicile nor the domicile or citizenship of the
remaining Defendants. As Defendant concedes, the party seeking to remove a case bears the
burden of proving that the federal district court has subject-matter jurisdiction. Williams v. Best
Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). Thus, Defendant has not met his burden of
establishing that diversity of citizenship exists.
Second, to the extent Defendant contends that removal is proper because an agency of the
United States is a named party to this litigation, he does not have the authority to remove on behalf
of that agency. Pursuant to 28 U.S.C. § 1442(a), “[a] civil action . . . that is against or directed
to . . . [t]he United States or any agency thereof or any officer (or any person acting under that
officer) of the United States or of any agency thereof” “may be removed by them to the district
court of the United States for the district and division embracing the place wherein it is pending.”
(emphasis added). Accordingly, even assuming that the Federal Trade Commission could meet the
requirements for removal under § 1442, the agency alone has the power to exercise that right. See
Bradford v. Harding, 284 F.2d 307, 310 (2d Cir. 1960) (“[E]ven the most literal reading [of § 1442]
would permit the federal officer alone to remove . . . . For ‘by them’ means ‘by any of the following
persons’ and the defendants who are not federal officers are not such persons.”); see also Morrison
v. Jack Richards Aircraft Co., 328 F. Supp. 580, 583 (W.D. Okla. 1971). Therefore, Defendant’s
removal of this case was improper. For the reasons set forth in the Report and Recommendation
and this Order, Defendant has not met his burden of establishing subject-matter jurisdiction, and
this case will be remanded.

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In accordance with the foregoing, it is hereby ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 32) is ADOPTED and CONFIRMED and
made a part of this Order.
2. This case is REMANDED to the Circuit Court of the Ninth Judicial Circuit, in and
for Osceola County, Florida, Case Number 15-CA-2304 MF.
3. All other pending motions are DENIED as moot.
4. The Clerk is directed to close this file.
DONE and ORDERED in Orlando, Florida on June 6, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Party
Clerk of the Court of the Ninth Judicial Circuit in and for Osceola County, Florida

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