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

Filing 11

ORDER: Plaintiff Patricia Reed's Complaint (Doc. # 1 ) is DISMISSED. Reed may file an amended complaint by June 8, 2017. Failure to do so will result in dismissal of this action without further notice. Signed by Judge Virginia M. Hernandez Covington on 5/11/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PATRICIA REED,
Plaintiff,
v.

Case No. 8:17-cv-1051-T-33AEP

U.S. BANK NATIONAL ASSOCIATION,
OCWEN LOAN SERVICING, LLC,
et al.,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon sua sponte review
of pro se Plaintiff Patricia Reed’s Complaint, filed on May
5, 2017. (Doc. # 1). For the reasons that follow, the Court
dismisses the Complaint and grants Reed leave to file an
amended complaint by June 8, 2017.
I.

Background
Reed initiated this action on May 5, 2017, against

Defendants

U.S.

Bank

National

Association,

Ocwen

Loan

Servicing, LLC, Mortgage Electronic Registrations Systems,
Inc. (MERS), American Brokers Conduit, and “Does 1 through 10
inclusive.” (Doc. # 1). The Complaint references numerous
state and federal statutes but only lists two causes of action

1

for

(1)

Cancellation

(“Assignment

of

and

Expungement

Mortgage”),

of

seeking

an

Instrument

cancellation

and

expungement of the mortgage recorded with the Sarasota County
Recorder’s Office; and (2) Declaratory Relief, seeking a
declaration that the mortgage on file with the county recorder
is voidable. (Id. at 41-42). Reed also filed an additional
memorandum of law in support of her Complaint, including
excerpts from various statutes and consent orders entered
between Ocwen, U.S. Bank, and MERS and the Comptroller of the
Currency of the United States. (Doc. # 2).
Essentially, Reed argues her mortgage is voidable and
the Defendant companies “do not have a lawful ownership or a
security interest in [her] home.” (Doc. # 1 at ¶ 14).
II.

The Complaint Does Not Establish the Basis for the
Court’s Jurisdiction
A.

Federal Question

Federal

courts

are

courts

of

limited

jurisdiction.

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). And
“because a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously [e]nsure that jurisdiction exists over a case, and
should

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt

2

about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001).
Generally, the district courts have jurisdiction over
cases “arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. As stated in Merrell
Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986),
“the question of whether a claim ‘arises under’ federal law
must

be

determined

by

reference

to

the

well-pleaded

complaint.” Id. at 808. The Supreme Court has explained that
“[u]nder the longstanding well-pleaded complaint rule, . . .
a suit arises under federal law only when the plaintiff’s
statement of his own cause of action shows that it is based
upon federal law.” Vaden v. Discover Bank, 556 U.S. 49, 60
(2009)(internal citations omitted).
Within these parameters, the Supreme Court has clarified
that a cause of action can arise under federal law in one of
three ways. Franchise Tax Bd. v. Constr. Laborers Vacation
Tr., 463 U.S. 1, 8 (1983). First, a federal law may “create
the cause of action.” Id. at 8-9. Second, a cause of action
may

arise

where

“some

substantial,

disputed

question

of

federal law is a necessary element of one of the well-pleaded
state claims.” Id. at 13. Third, a cause of action may arise
where “a federal cause of action completely preempts a state
3

cause of action.” Id. at 24. The mere mention of a federal
statute in a complaint does not create federal question
jurisdiction. Hill v. Marston, 13 F.3d 1548, 1550 (11th Cir.
1994). Rather, federal question jurisdiction requires that a
party assert a substantial federal claim. Hagans v. Lavine,
415 U.S. 528, 536 (1976); see also Baker v. Carr, 369 U.S.
186, 199 (1962)(holding that if jurisdiction is based on a
federal question, the plaintiff must show that he has alleged
a claim under federal law that is not frivolous).
The Complaint is unclear regarding the basis for the
Court’s exercise of jurisdiction. Although the Complaint
references various federal statutes and states that federal
question jurisdiction exists, neither of the two causes of
action is brought under a federal statute or the United States
Constitution. (Doc. # 1 at ¶ 1). In fact, neither cause of
action states the legal basis for the claim, leaving the Court
to guess what federal statute could form the basis of the
claim. The first cause of action, labeled Cancellation and
Expungement of an Instrument (“Assignment of Mortgage”),
appears to be a state common law claim for rescission of the
mortgage.
While

the

second

cause

of

action

seeks

declaratory

relief, the Complaint does not state whether Reed is bringing
4

this claim pursuant to the federal Declaratory Judgment Act.
Regardless, the “Declaratory Judgment Act does not itself
confer jurisdiction upon federal courts.” United States v.
Knowles, -- F. App’x --, No. 16-15080, 2017 WL 1089497, at *1
(11th Cir. Mar. 23, 2017). Rather, it “allow[s] parties to
precipitate suits that otherwise might need to wait for the
declaratory relief defendant to bring a coercive action.”
Household Bank v. JFS Grp., 320 F.3d 1249, 1253 (11th Cir.
2003)(quotation

omitted).

“Thus,

in

the

context

declaratory judgment action, we must determine

of

a

‘whether,

absent the availability of declaratory relief, the instant
case could nonetheless have been brought in federal court.’”
Knowles, 2017 WL 1089497, at *1 (quoting Stuart Weitzman, LLC
v. Microcomputer Resources, Inc., 542 F.3d 859, 862 (11th
Cir. 2008)). Here, Reed seeks a declaration that the mortgage
is voidable. If declaratory relief were unavailable, the case
would involve state law claims brought by Defendants to
foreclose on Reed’s property based on their interest in the
mortgage. Thus, Reed’s claim for declaratory relief does not
establish

this

Court’s

exercise

of

federal

question

jurisdiction.
And many of the federal statutes cited throughout the
Complaint do not create private rights of action. For example,
5

15 U.S.C. § 7003 merely lists the exceptions to 15 U.S.C. §
7001, which states contracts should not be denied legal effect
because an electronic signature of record was used in their
formation. 15 U.S.C.

§§

7001,

7003.

Reed

also

quotes

a

criminal statute, 18 U.S.C. § 1021, which criminalizes the
false certification of unrecorded property conveyances by an
officer or other person authorized by any law of the United
States to record a conveyance of real property. (Doc. # 1 at
16). But, this is a civil case — not a criminal action. See
Fisher v. Conseco Fin. Co., No. 3:07CV266/RV/MD, 2007 WL
3012881, at *3 (N.D. Fla. Oct. 12, 2007)(“Rarely is there a
private right of action under a criminal statute.” (citing
Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979))).
Reed also has not identified what substantial question
of federal law, if any, is a necessary element of her claims.
A question of federal law is substantial if “the vindication
of a right under state law necessarily turn[s]

on some

construction of federal law.” Merrell Dow, 478 U.S. at 80809 (quoting Franchise Tax Bd., 463 U.S. at 9); see also
Templeton Bd. of Sewer Comm’rs., 352 F.3d at 38 (noting that
even where the federal law invoked does not create a private
right of action, “when the interpretation of federal law is
outcome-determinative, subject matter jurisdiction may be
6

properly exercised”). Reed seems to invoke numerous federal
statutes

and

Defendants’

prior

consent

orders

merely

to

accuse Defendants of wrongful mortgage handling practices in
general. But the vindication of Reed’s rights concerning her
mortgage in particular do not turn on federal law. Nor has
Reed brought a federal cause of action that preempts state
law causes of action.
If Reed wishes to invoke this Court’s federal question
jurisdiction, she should clarify in her amended complaint
whether she is bringing any claims directly under a federal
statute or constitutional provision or whether her state
claims turn on a matter of federal law.
B.

Diversity of Citizenship

The Complaint also fails to sufficiently allege a basis
for this Court’s exercise of diversity jurisdiction. When
jurisdiction is premised upon diversity of citizenship, 28
U.S.C. § 1332(a) requires complete diversity of citizenship
and that “the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs.”
Based on the allegations of the Complaint, the Court
cannot

determine

that

complete

diversity

of

citizenship

exists. Reed has not alleged her citizenship, although she
alleges her home is located in Sarasota County, Florida. (Doc.
7

# 1 at ¶ 6). If Reed is domiciled in Florida, she is a Florida
citizen and should explicitly state her citizenship in the
amended complaint. See McCormick v. Aderholt, 293 F.3d 1254,
1257

(11th

Cir.

2002)(“Citizenship

is

equivalent

to

‘domicile’ for purposes of diversity jurisdiction.”).
Reed alleges Defendant Ocwen Loan Servicing, LLC, is
“headquartered in West Palm Beach, Florida.” (Doc. # 1 at ¶
7). But, “like a limited partnership, a limited liability
company is a citizen of any state of which a member of the
company is a citizen.” Rolling Greens MHP, L.P. v. Comcast
SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). If
any of Ocwen’s members is a Florida citizen, then Ocwen is a
Florida citizen and complete diversity of citizenship would
not exist if Reed is also a Florida citizen.
Reed asserts Defendant American Brokers Conduit is “a
Texas corporation headquartered in Dallas, Texas,” which
would make it a Texas citizen. (Doc. # 1 at ¶ 7); see 28
U.S.C. § 1332(c)(1)(establishing that corporations are deemed
citizens of “every State and foreign state by which it has
been incorporated and of the State or foreign state where it
has its principal place of business”). But Reed then claims
American Brokers Conduit “went out of business on November
30, 2010 as per its Chapter 11 liquidation filing under
8

bankruptcy” and its assets are now owned by “the Greentree
Mortgage Company L.P. of Marlton, New Jersey.” (Doc. # 1 at
¶ 7). It is unclear whether Reed wishes to sue the defunct
American Brokers Conduit or the Greentree Mortgage Company
L.P. If Reed wishes to name Greentree Mortgage Company L.P.
as a defendant, she should clarify that. She must also allege
the

citizenships

of

all

of

Greentree

Mortgage

Company’s

partners because limited partnerships are citizens of any
state of which a partner is a citizen. See Rolling Greens
MHP, L.P., 374 F.3d at 1022 (noting limited partnerships are
citizens of every state of which a partner is a citizen).
Furthermore, the Complaint contains no allegations about
the citizenships of the ten unidentified Defendants, whom
Reed calls “Does 1 through 10 inclusive.” If Reed continues
to assert claims against unidentified “John Does” in her
amended complaint, the Court will be unable to determine
whether complete diversity of citizenship exists. Cf. PNC
Bank, N.A. v. H.R. United, Inc., No. 6:13-cv-949-Orl-37GJK,
2013 WL 12166243, at *1 (M.D. Fla. June 20, 2013)(“For cases
whose claims are brought solely under the court’s diversity
jurisdiction,

the

general

rule

is

that

fictitious parties destroys diversity.”).

9

the

presence

of

The Court is also unable to determine the amount in
controversy.

Although

Reed

states

she

is

seeking

“compensatory, punitive, special and general damages” in the
Complaint’s

introduction

section,

she

does

not

include

damages in her prayer for relief. (Doc. # 1 at ¶ 12). Nor
does Reed ever state the amount of damages she seeks.
The types of relief specified in Reed’s two causes of
action are entirely speculative without further information.
Reed

seeks

a

court

order

directing

the

Sarasota

County

Recorder’s Office to cancel and expunge her mortgage from the
record for Reed’s property. (Id. at 41). She also seeks a
declaration regarding “whether [the] subject ‘Recordation of
Mortgage’

is

a

voidable

instrument”

and

“whether

the

‘Recordation of Mortgage’ factually or legally amounted to
assign anything whatsoever, and further whether it exists as
a ‘Cloud’ on Plaintiff’s Land Record/Real Property Title and
hence should be removed.” (Id. at ¶ 51).
“For

amount

in

controversy

purposes,

the

value

of

injunctive or declaratory relief is the ‘value of the object
of

the

litigation’

measured

from

the

plaintiff’s

perspective.” Morrison v. Allstate Indem. Co., 228 F.3d 1255,
1268 (11th Cir. 2000)(citation omitted). “Stated another way,
the value of declaratory relief is ‘the monetary value of the
10

benefit that would flow to the plaintiff if the [relief he is
seeking] were granted.’” S. Fla. Wellness, Inc. v. Allstate
Ins. Co., 745 F.3d 1312, 1316 (11th Cir. 2014)(citation
omitted). Reed indicates that the original mortgage amount in
2006 was $169,400. (Doc. # 1 at 12). But the Complaint does
not state the remaining balance owed on the mortgage, so the
Court cannot determine the financial value to Reed of the
mortgage being declared voidable.
If Reed wishes to proceed in this Court on the basis of
diversity

jurisdiction,

she

should

clearly

identify

the

citizenships of all parties and provide more information on
the amount in controversy.
C.

Rooker-Feldman Doctrine

There is another potential problem regarding the Court’s
jurisdiction. Reed states she stopped making payments on the
mortgage and “was subsequently illegally foreclosed upon.”
(Doc. # 1 at ¶ 20). “Under the Rooker–Feldman doctrine, a
district court lacks jurisdiction over claims ‘brought by
state-court losers complaining of injuries caused by statecourt

judgments

rendered

before

the

district

court

proceedings commenced and inviting district court review and
rejection of those judgments.’” Valentine v. BAC Home Loans
Servicing,

L.P.,

635

F.

App’x
11

753,

756

(11th

Cir.

2015)(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005)). “The doctrine extends to claims
involving issues that are ‘inextricably intertwined with the
state court judgment,’ i.e., claims that would ‘effectively
nullify’ the state court judgment or that would ‘succee[d]
only to the extent that the state court wrongly decided the
issues.’” Valentine, 635 F. App’x at 756–57 (quoting Casale
v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009).
If a state court has determined Reed’s mortgage is valid
and has foreclosed upon her home, this Court cannot serve in
an appellate capacity and second-guess that court’s decision
about the enforceability of the mortgage. See Sitton v. United
States, 413 F.2d 1386, 1389 (5th Cir. 1969)(“The jurisdiction
possessed by the District Courts of the United States is
strictly original. A federal district court has no original
jurisdiction to reverse or modify the judgment of a state
court. Federal courts have no authority to act as an appellate
arm of the state courts.”). The proper remedy would be to
appeal the state court’s foreclosure judgment through the
state court system.
But the status of the foreclosure proceedings is unclear
and the Court is uncertain whether Reed seeks to have the
Court review the state court’s judgment. In her amended
12

complaint,

Reed

should

clarify

whether

the

foreclosure

proceedings are ongoing or whether a judgment of foreclosure
has been entered.
III. The Complaint is a Shotgun Complaint
A.

Legal Standard

The Court construes pro se pleadings liberally and holds
them to a less stringent standard than those drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003). But “a pro se litigant is still required to conform to
procedural rules, and a district judge is not required to
rewrite a deficient pleading.” McFarlin v. Douglas Cty., 587
F. App’x 593, 595 (11th Cir. 2014). A district judge may sua
sponte dismiss a complaint for failure to comply with the
federal rules.

Id. (citations omitted). Likewise, “[t]he

district judge also has the inherent authority sua sponte to
require the plaintiff to file a more definite statement.” Id.
(citing Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th
Cir. 1996)).
Pursuant to Rule 8(a), Fed. R. Civ. P., a pleading that
states a claim must contain, among other things, “a short
plain statement of the claim showing that the pleader is
entitled to relief.”

Additionally, Rule 10(b) provides that

“[a] party must state its claims or defenses in numbered
13

paragraphs, each limited as far as practicable to a single
set of circumstances.” Fed. R. Civ. P. 10(b). Taken together,
these

rules

“require

the

pleader

to

present

his

claims

discretely and succinctly.” Fikes, 79 F.3d at 1082 (citation
omitted).
Complaints that fail to plead discretely and succinctly
are

often

described

shotgun
four

complaints.

varieties

of

The

Eleventh

shotgun

Circuit

complaints:

(1)

has
“a

complaint containing multiple counts where each count adopts
the allegations of all preceding counts”; (2) a complaint
that is “replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of action”;
(3) a complaint that does “not separat[e] into a different
count each cause of action or claim for relief”; and (4) a
complaint that “assert[s] multiple claims against multiple
defendants without specifying which of the defendants are
responsible for which acts or omissions, or which of the
defendants the claim is brought against.” Weiland v. Palm
Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th
Cir. 2015).
“The unifying characteristic of all types of shotgun
pleadings is that they fail to . . . give the defendants
adequate notice of the claims against them and the grounds
14

upon which each claim rests.” Id. at 1323. In such cases, it
is “virtually impossible to know which allegations of fact
are intended to support which claim(s) for relief.” Anderson
v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364,
366 (11th Cir. 1996). A defendant faced with such a complaint
is not expected to frame a responsive pleading. Id. “The
Federal Rules of Civil Procedure, pertinent precedent, sound
principles of litigation management, and fairness to the
opposing party almost uniformly commend requiring a litigant
to submit a complaint that is not a ‘shotgun pleading’ and
that otherwise complies with the salutary rules of pleading.”
Stevens v. Barringer, No. 2:11-cv-697-UA-SPC, 2013 WL 24272,
at *2 (M.D. Fla. Jan. 2, 2013).
B.

Discussion

In addition to insufficiently establishing jurisdiction,
the Complaint is a shotgun complaint. Reed’s second cause of
action, for declaratory relief, impermissibly “incorporates
by reference, restates, re-alleges, and reasserts any and all
previously alleged allegations, facts, herewith.” (Doc. # 1
at ¶ 50); see Weiland, 792 F.3d at 1322-23 (describing one
type of shotgun complaint as “a complaint containing multiple
counts

where

each

count

adopts

the

allegations

of

all

preceding counts”). Thus, the allegations of the first cause
15

of action are incorporated into Reed’s claim for declaratory
relief.
Additionally, the causes of action do not state their
legal basis, which forces the Court and Defendants to comb
through forty pages of the Complaint to determine which
statutes

cited

in

the

factual

allegations

could

support

Reed’s claims. In her amended complaint, Reed should label
each cause of action as a numbered count and should clearly
identify the legal basis for that claim.
It is also unclear whether Reed is attempting to bring
more than the two listed causes of action. For example,
following the count for declaratory relief, Reed states:
Defendants have ignored and obfuscated Plaintiff’s
attempts to obtain information under Notice of
Error & Request for “Validation of Debt”/“Proof of
Claim Request,” of the Fair Debt Collection
Practices Act (FDCPA). This is in violation of
numerous Florida State Statute[s], United States
Title U.S.C. and Uniform Commercial Statutes
violated by the Defendants.
(Doc. # 1 at 44). If Reed wishes to assert additional claims
under the FDCPA — or any other statute — she should clearly
label that claim as a numbered count.
Indeed, the Complaint references numerous state and
federal statutes that do not support her claims. As previously
mentioned, Reed quotes a criminal statute, 18 U.S.C. § 1021,

16

which criminalizes

the false certification of unrecorded

property conveyances by an officer or other person authorized
by any law of the United States to record a conveyance of
real property. (Id. at 16). That statute is irrelevant to
Reed’s civil claims for cancellation of her mortgage and
declaratory relief.

The Complaint also

states

“Plaintiff

relies upon reference to Plaintiff’s Memorandum of Law filed
contemporaneously herewith.” (Id. at 44). A complaint should
be a single document that clearly and succinctly states a
plaintiff’s claims. Thus, in her amended complaint, Reed
should not include a separate memorandum of law and should
refrain

from

including

references

to

or

excerpts

from

irrelevant statutes and consent orders.
Finally, although the Complaint’s caption labels it as
a “petition for declaratory judgment and injunctive relief,”
neither cause of action seeks injunctive relief. (Id. at 1).
Reed also states in the introduction that she is seeking
“compensatory, punitive, special and general damages.” (Id.
at ¶ 12). But neither cause of action requests damages,
instead

requesting

rescission

of

the

mortgage

and

a

declaration that the mortgage is voidable. Thus, Defendants
are left uncertain regarding the types of relief Reed seeks.

17

IV.

Conclusion
Because it fails to sufficiently establish a basis for

the Court’s jurisdiction and is a shotgun complaint, the
Complaint is dismissed with leave to amend by June 8, 2017.
Failure to do so will result in dismissal of this action
without further notice
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Plaintiff

Patricia

Reed’s

Complaint

(Doc.

#

1)

is

DISMISSED. Reed may file an amended complaint by June 8, 2017.
Failure to do so will result in dismissal of this action
without further notice.
DONE and ORDERED in Chambers in Tampa, Florida, this
11th day of May, 2017.

18