Diversified Properties LLC v. Castleberry
Filing
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Plaintiff's Motion to Remand to State Court (Doc. 9) is GRANTED-in-PART and DENIED-in-PART. This case is REMANDED to the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The Clerk is directed to send a certified copy of t his Order to the Clerk of Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. Plaintiff's request for an award of attorneys' fees and costs is DENIED. All pending motions are DENIED as moot. The Clerk is directed to terminate all pending deadlines and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 7/5/2017. (JJH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DIVERSIFIED PROPERTIES LLC,
Plaintiff,
v.
Case No: 8:17-cv-805-T-36TGW
CRYSTAL CASTLEBERRY,
Defendant.
___________________________________/
ORDER
This matter comes before the Court upon the Plaintiff's Motion to Remand to State Court
(Doc. 9), filed on April 26, 2017. In the motion, Plaintiff states that the Court lacks subject matter
jurisdiction over the case because the Defendant has not demonstrated that the parties are diverse
or that a federal question is at issue. Defendant did not file a response to the Motion within the
time allotted. The Court entered an Order to Show Cause directing her to file a response, or risk
having the Motion deemed unopposed. Doc. 10. As of the date of this Order, no response has been
filed. Because the Complaint is a straightforward eviction action seeking removal of the tenant
and recovery of past due rent, and does not allege any cause of action that arises under federal law,
the Court must remand the case back to state court. The Court, having considered the motion and
being fully advised in the premises, will grant Plaintiff's Motion to Remand to State Court.
I.
FACTUAL BACKGROUND
On March 29, 2017, Plaintiff, Diversified Properties LLC, (“Diversified”) filed a complaint
for tenant eviction from a residential property and recovery of past due rent in the County Court
in and for Hillsborough County, Florida, against Defendant Crystal Castleberry. Doc. 2. The
Complaint alleges that Castleberry’s rent is past due; it demands eviction and damages in the
amount of $2,600. Id. at ¶¶ 1, 9.
Castleberry’s “Answer and Counterclaim,” which she filed in state court pro se, alleges
that she paid the rent for February 2017, but not the late fees or the rent for March 2017. Doc. 3 at
1. She alleges that there are several issues regarding the air conditioning in the apartment, which
has left it either too cold or too hot. Id. And she claims that the rent office misplaced a $400 money
order, for which she has not received any credit. Id. She does not explicitly mention any statute or
law upon which she relies as a defense to the action.
II.
LEGAL STANDARD
Federal court removal is governed by 28 U.S.C. § 1441, which provides in part that
“[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State
court of which the district courts of the United States have original jurisdiction may be removed
by the defendant or the defendants to the district court of the United States for the district and
division embracing the place where such action is pending.” Id. at § 1441(a). Federal district courts
are courts of limited jurisdiction. See Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1260–61
(11th Cir. 2000). Under Federal Rule of Civil Procedure 12(b)(1), an action must be dismissed if
the Court lacks subject matter jurisdiction. See id. at 1261. Parties seeking to invoke subject matter
jurisdiction must show that the underlying claim is based upon either diversity jurisdiction (cases
in which the parties are of diverse citizenship and “the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs”), or the existence of a federal question (i.e., “a
civil action arising under the Constitution, laws, or treaties of the United States”). See 28 U.S.C.
§§ 1331–1332.
Procedurally, removal is governed by 28 U.S.C. § 1446, which provides:
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1) The notice of removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based, or within 30
days after the service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to be served
on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b)(1).
Removal jurisdiction is construed narrowly with all doubts resolved in favor of remand.
See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999); Pacheco de Perez v.
AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). “A removing defendant bears the burden of
proving proper federal jurisdiction.” Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir.
2002) (citing Williams v. Best Buy Co., 269 F.3d 1316, 1319–20 (11th Cir. 2001)). In assessing
whether removal is proper, the district court considers “only the limited universe of evidence
available when the motion to remand is filed - i.e., the notice of removal and accompanying
documents. If that evidence is insufficient to establish that removal was proper or that jurisdiction
was present, neither the defendants nor the court may speculate in an attempt to make up for the
notice's failings.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007), cert. denied,
553 U.S. 1080, 128 S.Ct. 2877, 171 L.Ed.2d 812 (2008).
Where the alleged basis for federal jurisdiction is a federal question under 42 U.S.C. §
1331, as it is in this case, the removing defendant has the burden of demonstrating the action
“aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The
federal question at issue “must appear on the face of the plaintiff's well-pleaded complaint.” Cmty.
State Bank v. Strong, 651 F.3d 1241, 1251 (11th Cir. 2011). When only state-law claims are
asserted in a complaint, a claim “aris[es] under” federal law if a federal issue is: “(1) necessarily
raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in the federal court
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without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251
(2013).
III.
DISCUSSION
a. The Notice of Removal
Castleberry, proceeding pro se 1, filed a Notice of Removal alleging that Diversified’s
Complaint, although sounding in state law, actually raises a federal question because it
“intentionally fails to allege compliance with the Civil Rights Act of 1968” and the property has
“multiple habitability issues including the AC and Heater that does [sic] not work right….” Doc.
1 at ¶¶ 5, 6. She cites Grable & Sons Metal Prds. v. Darue Engr, & Mfg, 545 U.S. 308, 313-315
(2005) for the proposition that even if a case only alleges state law claims, “the District Court has
subject matter jurisdiction over the case if: 1) the federal issues are essential to the claims, 2) there
is a substantial federal issue[] in resolving such issues, and 3) a Federal forum may entertain the
State law claims without disturbing the balance of Federal and State judicial responsibilities.” Doc.
1 at ¶ 8. She alleges that she is a member of a class protected by the Civil Rights Act of 1968. Id.
at ¶ 10. Castleberry also quotes several federal cases regarding bringing a private right of action.2
Id. at ¶ 9.
b. Allegations regarding federal question jurisdiction
“A civil action filed in a state court may be removed to federal court if the claim is one
‘arising under’ federal law.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6 (2003). To determine
1
Because Castleberry proceeds pro se, the Court will construe her pleadings liberally and will
hold the pleadings to a “less stringent standard” than that of a licensed attorney. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
2
Castleberry cites Merril Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 817 (1986); Diaz v.
Davis, (In Re Digimarc Corporation Derivative Litigation), 549 F. 3d 1223, 1229-30 (9th Cir.
2008); Lamie v. United States Trustee, 540 U.S. 526, 534 (2004); and First Pacific Bancorp, Inc.
v. Helfer, 224 F. 3d 1117, 1123, 1125-26 (9th Cir. 2000). Doc. 1 at ¶ 9.
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whether the claim arises under federal law, the Court examines “the ‘well pleaded’ allegations of
the complaint and ignores potential defenses: [a] suit arises under the Constitution and laws of the
United States only when the plaintiff's statement of his own cause of action shows that it is based
upon those laws or that Constitution.” Id. This legal proposition is known as the “well-pleaded
complaint” rule. Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern
Cal., 463 U.S. 1, 9-10 (1983).
Even if a complaint raises a potential defense involving federal law, the cause of action
does not necessarily arise under federal law. So, for example, the following are insufficient to
allege a basis for removal based on federal question jurisdiction: a plaintiff alleging an anticipated
defense to his cause of action and asserting that the defense is invalidated by a provision of the
Constitution of the United States, a defense that relies on the preclusive effect of a prior federal
judgment, and a defense that relies on the pre-emptive effect of a federal statute. Anderson, 539
U.S. at 6 (citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, (1908); Rivet v.
Regions Bank of La., 522 U.S. 470 (1998); Franchise Tax Bd. of Cal., 463 U.S. 1)).
There is an exception to the well-pleaded complaint rule. “[W]hen a federal statute wholly
displaces the state-law cause of action through complete pre-emption,” the state claim can be
removed. Anderson, 539 U.S. at 8. This is so because “[w]hen the federal statute completely preempts the state-law cause of action, a claim which comes within the scope of that cause of action,
even if pleaded in terms of state law, is in reality based on federal law.” Id.
An “independent corollary” to this rule is that “a plaintiff may not defeat removal by
omitting to plead necessary federal questions.” Rivet, 522 U.S. at 475. Therefore, if a court
concludes that a plaintiff has “artfully pleaded” claims this way, it may uphold removal even
though no federal question appears on the face of the plaintiff's complaint. Id. Stated differently,
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“[t]he artful pleading doctrine allows removal where federal law completely preempts a plaintiff's
state-law claim.” Id.
c. This Court lacks subject matter jurisdiction
The Notice of Removal is timely as it was filed within thirty days of the filing of the
Complaint. See 28 U.S.C. § 1446(b). But Castleberry did not identify the specific provision of the
Civil Rights Act of 1968 upon which she relies. She merely argues that Plaintiff has “artfully pled”
the eviction cause of action in such a way to avoid pleading compliance with the Civil Rights Act
of 1968. And Castleberry did not identify any other federal statute or case law that preempts
Diversified’s causes of action. The Court presumes, based on Castleberry’s allegations in the
Notice of Removal and her Answer and Counterclaim, that she bases her claim on Title VII of the
Civil Rights Act of 1968, commonly known as the Fair Housing Act (“FHA”) 3, 42 U.S.C. § 3601.
et seq. She makes claims that appear to relate to Housing and Urban Development (“HUD”) 4
regulations regarding habitability of property.
Castleberry’s arguments, construed liberally, do not establish federal question jurisdiction.
In fact, various district courts have concluded that they lacked subject matter jurisdiction in
eviction cases such as this one. See, e.g., Summerhill Partners, LLC v. Grimes,
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The FHA forbids “discriminat[ing] against any person in the terms, conditions, or privileges of
sale or rental of a dwelling, or in the provision of services or facilities in connection therewith,
because of race....” 42 U.S.C. § 3604(b). It also makes it unlawful for “any person or other entity
whose business includes engaging in residential real estate-related transactions to discriminate
against any person in making available such a transaction, or in the terms or conditions of such a
transaction, because of race....” Id. at § 3605(a). The statute allows any “aggrieved person” to file
a civil action seeking damages for a violation of the statute. Id. at §§ 3613(a)(1)(A), 3613(c)(1).
And it defines an “aggrieved person” to include “any person who ... claims to have been injured
by a discriminatory housing practice.” Id. at § 3602(i).
4
The Secretary of Housing and Urban Development is charged with administering the FHA. 42
U.S.C. § 3608.
6
617CV288ORL37GJK, 2017 WL 991478, at *1 (M.D. Fla. Mar. 15, 2017). In Grimes, a case
substantially similar to this one, the defendants alleged that “1) the Eviction Complaint
‘intentionally fail[ed] to allege compliance with the Civil Rights Act of 1968’; (2) … [the property
had] multiple habitability issues; and (3) the State Action involve[d] issues of discrimination.” Id.
at *1. The court adopted the magistrate judge’s report and recommendation which found that no
federal question existed on the face of the complaint and remanded the action to state court. 5
In Allen v. Bank of Am., N.A., 5 F. Supp. 3d 819 (N.D. Tex. 2014); the court held that it
lacked subject matter jurisdiction when the mortgagor removed his state court action against a
bank seeking specific performance for the bank's alleged breach of deed of trust. He alleged that
the deed of trust was governed by federal law and regulations of the FHA. Id. at 833. The Court
concluded that the performance claim was grounded in the deed of trust, and if the district court
retained jurisdiction over the foreclosure-related case, it would have disturbed the balance of
federal and state judicial responsibilities. Id. See also Four Aces Mobile Home Estates v. Lundahl,
35 F. Supp. 2d 1337, 1340 (D. Utah 1998), aff'd, 166 F.3d 347 (10th Cir. 1998) (holding that
federal question jurisdiction was lacking over action for eviction of residents from mobile home,
notwithstanding one resident's claim, offered in support of removal jurisdiction, that her state court
answer raised numerous federal questions as affirmative defenses).
In Rogers v. Rucker, 835 F. Supp. 1410 (N.D. Ga. 1993), the defendant tenant removed the
case to federal court asserting that federal question jurisdiction existed due to her counterclaim
which alleged violations of the FHA and the Civil Rights Act of 1866, 42 U.S.C. § 1982. Id. at
1411. The state court eviction action sought collection of past-due rent, late fees, and
5
Compare Sofarelli v. Pinellas County, 931 F.2d 718 (11th Cir. 1991) (examining defendant's
removal based on his counterclaim and concluding that the case was properly removed under
Section 1443(1) as the claims asserted racial discrimination in violation of the FHA).
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dispossession. Id. at 1412. The court held that “[a]bsent specific factual allegations establishing
that the plaintiff's motive in bringing this action was to deter the defendant from engaging in
protected activity and that the plaintiff's action ‘has the effect of coercing, intimidating, threatening
and otherwise interfering’ with the defendant's rights, the defendant has failed to meet her burden
of proving that removal was proper.” Id. See also Robinson v. Eichler, 795 F. Supp. 1253 (D.
Conn. 1992) (holding that the FHA did not have so strong a preemptive effect that it displaced
local zoning ordinances such that suit brought pursuant to such an ordinance was necessarily
federal and thus subject to removal to federal court). As with the above-cited cases, Castleberry
has not established that the Complaint alleges a cause of action that arises under federal law.
To the extent that Castleberry relies on the artful pleading doctrine, the doctrine assumes
that the plaintiff could originally have filed suit in federal court, if not for the “artful” avoidance
of an allegation of a claim arising under federal law. See Merrell Dow Pharms., Inc., 478 U.S. at
808. In this case, however, Castleberry makes no showing that Diversified could have initially
filed its claim in federal court.
Absent federal question jurisdiction presented on the face of plaintiff's properly pleaded
complaint, the only basis for the removal of a state court action to federal court is diversity
jurisdiction. See Lindley v. F.D.I.C., 733 F.3d 1043 (11th Cir. 2013), aff'd sub nom. Lokey v.
F.D.I.C., 608 Fed. Appx. 736 (11th Cir. 2015). Although Castleberry has not alleged subject matter
jurisdiction based on diversity, the Court notes that the Complaint alleges that both parties are
Florida residents. Doc. 2. Therefore, complete diversity does not exist. See 28 U.S.C. § 1332(a).
And where the Defendant is a Florida resident, the case cannot be removed to federal court in
Florida based on diversity. See North v. Precision Airmotive Corp., 600 F. Supp. 2d 1263, 1267
(M.D. Fla. 2009) (“Pursuant to 28 U.S.C. § 1441(b), actions founded upon diversity ‘shall be
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removable only if none of the parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.’ ”).
d. Diversified’s request for attorneys’ fees and costs
In its motion, Diversified requests an award of attorneys’ fees and costs pursuant to 28
U.S.C. § 1447(c), which provides in part that “[a]n order remanding the case may require payment
of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”
This Court may award attorneys’ fees under the attorney fee provision of the removal statute only
where the removing party lacked an objectively reasonable basis for seeking removal. Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005). “In applying this rule, district courts retain
discretion to consider whether unusual circumstances warrant a departure from the rule in a given
case.” Id.
The Eleventh Circuit has noted that the reasonableness standard enunciated by the Supreme
Court was meant to balance “ ‘the desire to deter removals sought for the purpose of prolonging
litigation and imposing costs on the opposing party, while not undermining Congress’ basic
decision to afford defendants a right to remove as a general matter, when the statutory criteria are
satisfied.’ ” Bauknight v. Monroe County, Fla., 446 F.3d 1327, 1329 (11th Cir. 2006) (quoting
Martin, 546 U.S. at 140). Therefore, “there is no indication that a trial court should ordinarily grant
an award of attorney's fees whenever an effort to remove fails.” Kennedy v. Health Options, Inc.,
329 F.Supp. 2d 1314, 1319 (S.D. Fla. 2004).
In this case, because Castleberry is pro se, the Court holds her pleadings to a less stringent
standard. Although, there is no “bright line rule” as to the definition of “objectively reasonable,”
courts that have applied the Martin standard typically focus upon whether the removing party has
offered a credible reason for removal, even if it later becomes clear that the removing party was
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wrong on the facts or the law. In this case, it turns out that Castleberry was wrong on the law. She
may not have been aware that the mere mention of a federal statute is insufficient to establish
federal question jurisdiction. And Plaintiff’s motion lacks a notice of compliance with Local Rule
3.01(g) 6. In light of these circumstances, the Court will deny the request for attorneys’ fees and
costs.
IV.
CONCLUSION
This case is a straightforward action to evict Castleberry for the failure to pay rent; the
eviction process is governed by state law, and no federal question exists on the face of the
Complaint. Castleberry has not met her burden to demonstrate subject matter jurisdiction.
Therefore, the Court will grant Plaintiff’s motion and remand this case to state court.
Accordingly, it is
ORDERED:
1.
Plaintiff's Motion to Remand to State Court (Doc. 9) is GRANTED-in-PART and
DENIED-in-PART.
2.
This case is REMANDED to the Thirteenth Judicial Circuit in and for
Hillsborough County, Florida.
3.
The Clerk is directed to send a certified copy of this Order to the Clerk of Court for
the Thirteenth Judicial Circuit in and for Hillsborough County, Florida.
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Local Rule 3.01(g) states in part “before filing any motion in a civil case, except a
motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss
or to permit maintenance of a class action, to dismiss for failure to state a claim upon which
relief can be granted, or to involuntarily dismiss an action, the moving party shall confer with
counsel for the opposing party in a good faith effort to resolve the issues raised by the
motion, and shall file with the motion a statement (1) certifying that the moving counsel
has conferred with opposing counsel and (2) stating whether counsel agree on the resolution of
the motion.”
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4.
Plaintiff’s request for an award of attorneys’ fees and costs is DENIED.
5.
All pending motions are DENIED as moot.
6.
The Clerk is directed to terminate all pending deadlines and CLOSE this case.
DONE AND ORDERED in Tampa, Florida on July 5, 2017.
Copies to:
Counsel of Record and Unrepresented Parties, if any
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