Ventures Trust v. Ricci

Filing 6

Order Remanding Case to State Court, denying as moot DE 5 Plaintiff's MOTION to Remand to State Court. Closing Case. Motions terminated: 5 Plaintiff's MOTION to Remand to State Court filed by Ventures Trust. Signed by J udge Robert N. Scola, Jr on 4/16/2018. (lrz1) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Ventures Trust (aka JPMorgan
Chase Bank), Plaintiff,

)
)
)
v.
) Civil Action No. 18-60714-Civ-Scola
)
Ernest P. Ricci, Defendant.
)
Order Remanding Case
Federal courts are obligated to conduct a preliminary examination of the
record to determine that jurisdiction exists. Kelly v. Harris, 331 F.3d 817, 819
(11th Cir. 2003). In reviewing the record, the Court concludes that subjectmatter jurisdiction over this action is lacking.
Defendant Ernest P. Ricci, proceeding pro se, purports to remove a
foreclosure case from state court in the Seventeenth Judicial Circuit of Broward
County. He claims the Court “has original jurisdiction pursuant to 28 USC
1334.” (Def.’s Not. of Removal ¶1.1, ECF No. 1, 2.) Ricci alleges no facts
supporting removal and instead simply refers the Court to a “civil Complaint.” As
best the Court can discern, however, Ricci has not attached the underlying
state-court complaint to his notice of removal.1 Ricci does not assert that the
Court’s diversity-jurisdiction is implicated. Ricci refers to the complaint filed
against him simply as a “foreclosure state case.” (Id. at 1.) There is no indication
whatsoever that the state-court complaint contains anything other than a statelaw claim of foreclosure.
“[T]o be removable on federal-question jurisdiction grounds, the case must
arise under federal law.” Madzimoyo v. Bank of N.Y. Mellon Trust Co., N.A., 440 F.
App’x 728, 730 (11th Cir. 2011). “If the plaintiff elects to bring only state law
causes of action in state court, no federal question will appear in the complaint
that could satisfy the well-pleaded complaint rule, and the case may not be
removed to federal court.” Kemp v. Int’l Bus. Machs. Corp., 109 F.3d 708, 712
(11th Cir. 1997). But a state-law claim that clearly raises a disputed, substantial
federal issue may give rise to federal-question jurisdiction if a federal court can
address the issue “without disturbing any congressionally approved balance of
federal and state judicial responsibilities.” Madzimoyo, 440 F. App’x at 730
(quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
Ricci has attached what purports to be a complaint filed in the Southern District of Florida
which is titled, “1983 Bivens Civil Action Complaint.” It is unclear what relevance that document
has to Ricci’s notice of removal.
1

314 (2005)). Ricci does not explain how any federal issue is raised by this
foreclosure case. Even if some federal laws regulate some aspect of the lending
industry, this would still not be enough to give rise to federal-question
jurisdiction under the Grable analysis. Buis v. Wells Fargo Bank, N.A., 401 F.
Supp. 2d 612, 617-18 (N.D. Tex. 2005). It is thus clear to the Court that there is
no federal-question jurisdiction over this case.
Although this is reason enough to remand this case to state court, the
Court has also reviewed Ventures Trust’s motion to remand. According to
Ventures Trust, the instant notice is successive to a notice of removal that was
assigned to Judge William P. Dimitrouleas in Case No. 17-61637-Civ. When Ricci
failed to respond to Ventures Trust’s motion to remand in that case, Judge
Dimitrouleas granted the motion. Judge Dimitrouleas denied Ricci’s motion to
reconsider that order, and the Eleventh Circuit dismissed his appeal of that
order on December 19, 2017. Additionally, according to Ventures Trust, Ricci’s
notice in this case is exceptionally untimely: Ricci was served by publication in
August 2013 and therefore his deadline to remove was in 2013. It therefore
appears, in addition to being subject to remand based on a lack of a federal
question or diversity, Ricci’s removal may also be both successive and untimely
as well. As a result, Ventures Trust asks this Court to enter an order to show
cause why Ricci should not be sanctioned for filing a frivolous notice of removal.
Because the Court finds no federal-question jurisdiction in this case it
orders that this case be remanded back to the Circuit Court for the Seventeenth
Judicial Circuit in and for Broward County, Florida. Because the Court remands
for that reason, it denies Ventures Trust’s motion to remand as moot. (ECF No.
5.) At the same time the Court orders Ricci to respond to Ventures Trust’s
request that the Court impose attorneys’ fees in this case based on the alleged
frivolousness of Ricci’s notice of removal. Ricci’s response must be filed on or
before April 30, 2018.
In the meantime, the Clerk is directed to close this case and take all
necessary steps to ensure the prompt remand of this action and transfer this file
back to the state court.
Done and ordered at Miami, Florida, on April 16, 2018.

Copy via U.S. mail to:
Ernest P. Ricci
180 Plain road
North Kingstown, RI 02852

________________________________
Robert N. Scola, Jr.
United States District Judge