Long Bar Point, LLP et al v. Manatee County

Filing 15

ORDER denying 5 --motion for attorney's fee; granting in part 5 --motion to remand. To the extent that Count I or II alleges a takings or "due process" claim under federal law, the claim is DISMISSED. To the extent Counts I and II allege claims under state law, this action is REMANDED to the circuit court for Manatee County, Florida. Directing the Clerk to SEND a certified copy of the order to the state court clerk; to TERMINATE any pending motion, and to CLOSE the case. Signed by Judge Steven D. Merryday on 2/3/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LONG BAR POINTE, LLLP, et al.,
Plaintiffs,
v.

CASE NO. 8:14-cv-2765-T-23AEP

MANATEE COUNTY,
Defendant.
____________________________________/

ORDER
The defendant removed (Doc. 1) this action from the circuit court for Manatee
County, and the plaintiffs move (Doc. 5) to remand. Under 28 U.S.C. § 1441, a
defendant can remove only an action within the district court’s original jurisdiction.
The removing defendant must establish federal jurisdiction. See Allen v. Toyota Motor
Sales, U.S.A., Inc., 155 Fed. Appx 480, 481 (11th Cir. 2005).
The parties agree that no federal jurisdiction exists over Count II, which
claims that the defendant violated the takings clause of the Fifth and Fourteenth
Amendments and the takings clause of Section 6(a), Article X, Florida Constitution.
Under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985), if a state provides an adequate procedure for just
compensation for the taking of property, a property owner may not claim a violation
of the federal takings clause until the owner has exhausted the state’s procedure and
the state with finality has denied just compensation. Because the plaintiffs have yet

to exhaust the procedure available under Florida law for a takings claim, the
plaintiffs’ federal claim is not ripe.
Count I, a substantive due process claim, arises from the same facts as
Count II. “[T]he Williamson County exhaustion requirement applies with full force to
due process claims (procedural and substantive) when based on the same facts as a
takings claim.” Greenfield Mills, Inc. v. Macklin, 631 F.3d 934, 961 (7th Cir. 2004);
Kurtz v. Verizon New York, Inc., 758 F.3d 506, 515 (2d Cir. 2014); Batemen v. City of
West Bountiful, 89 F.3d 704, 709 (10th Cir. 1996).
Accordingly, the plaintiffs’ motion (Doc. 5) to remand is GRANTED IN
PART. To the extent that Count I or II alleges a takings or “due process” claim
under federal law, the claim is DISMISSED. To the extent Counts I and II allege
claims under state law, this action is REMANDED to the circuit court for Manatee
County, Florida. The plaintiffs’ motion (Doc. 5) for an attorney’s fee is DENIED.
The clerk is directed (1) to mail a certified copy of this order to the clerk of the circuit
court for Manatee County, Florida, (2) to terminate any pending motion, and (3) to
close the case.
ORDERED in Tampa, Florida, on February 3, 2015.

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