Green Tree Servicing LLC v. Rodger et al

Filing 23

ORDER granting 17 Amended Motion to Remand to State Court; Adopting Report and Recommendations - re 20 Report and Recommendations. This case is REMANDED to the Circuit Court of the Seventh Judicial Circuit, in and for Volusia County, Flor ida, Case Number 2013 13352 CIDL. On or before May 8, 2017, Plaintiff shall file a motion for attorney's fees and costs. Rodger shall have fourteen days thereafter to file a response. The Order to Show Cause (Doc. 12) is DISCHARGED. The Clerk is directed to close this file. Signed by Judge Carlos E. Mendoza on 4/24/2017. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

GREEN TREE SERVICING LLC,
Plaintiff,
v.

Case No: 6:16-cv-1625-Orl-41TBS

ERIKA RODGER, GUY RODGER,
STONE ISLAND HOMEOWNERS
ASSOCIATION, INC. and DANIAL
RODGER,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Amended Motion to Remand (Doc. 17).
United States Magistrate Judge Thomas B. Smith submitted a Report and Recommendation
(“R&R,” Doc. 20), in which he recommends that this case be remanded to state court and
Defendant Erika Rodger be ordered to pay Plaintiff’s attorney’s fees and expenses. Rodger filed
an Objection (Doc. 21) to the R&R, raising substantially the same arguments presented in her
Response (Doc. 19) to the Amended Motion to Remand.
After a de novo review, this Court agrees with the analysis in the R&R. At the outset, to
the extent Rodger objects to the factual statements set forth in the background section of the R&R,
her objections are without merit. Judge Smith set forth the factual background as alleged by the
parties, but he did not address the merits of those contentions or make any legal determination as
to the truth of any fact asserted.
Rodger’s objections with respect to the R&R’s finding that a cross-defendant lacks the
right to remove a case that is not otherwise removable are also without merit. The majority of

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courts that have addressed this issue have found that a crossclaim defendant may not remove a
case based on the appearance of a federal question in the crossclaim. See Howard & Assocs.,
Attorneys-at-Law, P.A. v. Lieff Cabraser Heimann & Bernstein, LLP, No. 3:15-cv-1109-J-39JRK,
2016 WL 7232566, at *7 n.6 (M.D. Fla. Sept. 26, 2016) (collecting cases). Accordingly, if the
federal question does not appear in the original complaint as filed by the original plaintiff—as it
plainly does not in this case—then the case is not removable on the basis of federal question
jurisdiction.
As to the issue of attorney’s fees and costs, Rodger’s makes only a general objection that
incorporates her arguments as made in her Response but does not specifically or generally object
to the factual findings made in the relevant portion of the R&R. “If no specific objections to
findings of facts are filed, the district court is not required to conduct a de novo review of those
findings.” Statum v. Colvin, 169 F. Supp. 3d 1297, 1298 (M.D. Fla. 2016). Rodger’s objection is
based on the alleged lack of a contractual relationship with Plaintiff, which Rodger submits
prevents Plaintiff from recovering an award of fees and costs. However, the R&R’s
recommendation is based on the statutory right of entitlement created by 28 U.S.C. § 1447(c),
which allows the shifting of fees where the removal was frivolous or not otherwise justified. (See
also Doc. 19 at 3 (“[A]ttorney’s fees are not recoverable unless a statute or a contract specifically
authorizes their recovery.” (emphasis added))). For the reasons set forth in the R&R, this Court
agrees that an award of reasonable costs and fees is justified in this case.
Therefore, it is hereby ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 20) is ADOPTED and CONFIRMED and
made a part of this Order.
2. Plaintiff’s Amended Motion to Remand (Doc. 17) is GRANTED.

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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 13352 CIDL.
4. This Court retains jurisdiction solely to determine the amount of attorney’s fees and
costs to be awarded to Plaintiff.
5. On or before May 8, 2017, Plaintiff shall file a motion for attorney’s fees and
costs. Rodger shall have fourteen days thereafter to file a response.
6. The Order to Show Cause (Doc. 12) is DISCHARGED.
7. The Clerk is directed to close this file.
DONE and ORDERED in Orlando, Florida on April 24, 2017.

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

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