The Bank of New York Mellon v. Williams et al

Filing 25

ORDER denying 19 Motion for Reconsideration; adopting 20 Report and Recommendations. Signed by Judge Carlos E. Mendoza on 11/14/2016. (KMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

THE BANK OF NEW YORK MELLON,
Plaintiff,
v.

Case No: 6:16-cv-979-Orl-41TBS

DONALD F. WILLIAMS, PATRICIA
WILLIAMS, ANGELA STARR
KOLACKI, THE UNKNOWN SPOUSE
OF ANGELA STAR KOLACKI,
ROBERT J. KOLACKI, THE
UNKNOWN SPOUSE OF ROBERT J.
KOLACKI, THE UNKNOWN SPOUSE
OF DONALD F. WILLIAMS, THE
UNKNOWN SPOUSE OF PATRICIA
WILLIAMS, THE TOWERS AT PONCE
INLET COMMUNITY SERVICES
ASSOCIATION, INC., BERMUDA BAY
CONDOMINIUM ASSOCIATION, INC.,
THE TOWERS AT PONCE INLET,
TOWER V CONDOMINIUM
ASSOCIATION, INC., WELLS FARGO
BANK, N.A., ANY AND ALL
UNKNOWN PARTIES CLAIMING BY,
THROUGH, UNDER, AND AGAINST
THE HEREIN NAMED INDIVIDUAL
DEFENDANT(S) WHO ARE NOT
KNOWN TO BE DEAD OR ALIVE,
WHETHER SAID UNKNOWN
PARTIES MAY CLAIM AN INTEREST
and TENANT #1, TENANT #2, TENANT
#3, AND TENANT #4,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Defendant Donald F. Williams’ Motion for
Reconsideration (Doc. 19), which was filed in response to United States Magistrate Judge Thomas

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B. Smith’s June 15, 2016 Order (Doc. 4), wherein Judge Smith concluded that Defendant
Williams’ Notice of Removal (Doc. 1) was deficient. Judge Smith noted that the deficiency
resulted from the fact that not all Defendants consented to removal, see 28 U.S.C. § 1446(b)(2)(A),
Williams’ failed to file with his notice of removal “a copy of all process, pleadings, and orders
served upon . . . defendants” in the state court action, see id. § 1446(a), and a federal question did
not arise on the face of Plaintiff’s mortgage foreclosure Complaint (Doc. 6). Additionally, Judge
Smith stated that the Court was unable to determine if there was diversity jurisdiction because the
notice of removal was silent as to the citizenship of the parties. As a result, Judge Smith’s Order
directed the parties to address in writing whether this action had been properly removed and
whether an order of remand is appropriate.
Williams filed the only response. In his response, Williams argued that the Court
“overlooked certain powers it has to reframe the pleadings to include a federal question especially
when the Truth in Lending Act is involved” and that removal was proper for purposes of judicial
economy. (Doc. 19 at 1). Judge Smith subsequently issued a Report and Recommendation (Doc.
20), recommending that the action be remanded to the state court for lack of subject matter
jurisdiction. Again, Judge Smith explained that Plaintiff’s Complaint fails to raise a federal
question, and therefore, this Court does not have subject matter jurisdiction over this case.
Williams filed an Objection to the Report and Recommendation (Doc. 22). In his
Objection, Williams argues that it “has become common knowledge that every foreclosure action
is subject to federal regulations, a violation of which necessarily involves a federal question and
federal laws.” (Id. at 2). More broadly, Williams asserts that he has met the “purpose” for removal
jurisdiction, that the Court is free to realign the parties if necessary, and suggests that removal is

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proper because under federal law, where a non-removeable claim is coupled with a federal claim,
the entire action may removed, see 28 U.S.C. § 1441(c).
After an independent de novo review of the record in this matter, the Court agrees entirely
with the analysis set forth in the Report and Recommendation. Turning specifically to Plaintiff’s
objections, despite Plaintiff’s contention that every foreclosure action involves a federal question
and federal laws, the requirements for establishing that a federal court has subject matter
jurisdiction over a case are clearly settled, and the requirements have not been satisfied here. In
order for a federal court to have subject matter jurisdiction so that removal is proper, “a federal
question must appear on the face of the plaintiff’s complaint.” Kemp v. Int’l Bus. Machs. Corp.,
109 F.3d 708, 712 (11th Cir. 1997). After examining the Complaint, however, it is apparent that
no federal question arises on the face of Plaintiff’s Complaint. As discussed above, Williams also
asserts that he has met the “purpose” for removal jurisdiction. Although there are several issues
with this argument, this Court will address only one. Even if Williams could somehow show that
he “meets the purpose of removal jurisdiction,” this does not alleviate Williams from
demonstrating that the basic and well-established criteria for properly removing a case to federal
court have been satisfied. This Court further notes that it is not clear how realignment is relevant
or why it would be necessary in this case. Finally, to the extent Plaintiff tries to invoke 28 U.S.C.
§ 1441(c), the provision applies when a federal claim is joined with a state law claim, and as
previously discussed, no federal claim is at issue here based on Plaintiff’s Complaint.
Accordingly, it is ORDERED and ADJUDGED as follows:
1. Defendant Donald F. Williams’ Motion for Reconsideration (Doc. 19) is DENIED.
2. The Report and Recommendation (Doc. 20) is ADOPTED and CONFIRMED and
made a part of this Order.

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3. This case is REMANDED to the Circuit Court of the Seventh Judicial Circuit, in
and for Volusia County, Florida, Case Number 2013-31344-CICI.
4. The Clerk is directed to close this case.
DONE and ORDERED in Orlando, Florida on November 14, 2016.

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

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