Countrywide Home Loan Servicing LP et al v. Smith

Filing 4

Order Remanding Case to State Court; Remanding to the 17th Judicial Circuit in and for Broward County; Denying as Moot 3 Motion for Leave to Proceed in forma pauperis ; Closing Case. Signed by Judge Robert N. Scola, Jr. on 6/21/2018. (ls)

United States District Court
for the
Southern District of Florida
Countrywide Home Loan Servicing,
LP, and others, Plaintiffs,
v.
Charles Canute A Smith,
Defendant.

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) Civil Action No. 18-61386-Civ-Scola
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Order Remanding Case to State Court
This matter is before the Court upon the Defendant Charles Canute A
Smith’s motion for leave to proceed in forma pauperis. (ECF No. 3.) Mr. Smith,
who is proceeding pro se, has not paid the required filing fee. Therefore, the
screening provisions of 28 U.S.C. § 1915(e) apply. See Rehnerger v. Henry Cty.,
Ga., 577 F. App’x 937, 938 (11th Cir. 2014) (holding that 28 U.S.C. § 1915(e)
applies to all IFP proceedings). Section 1915(e)(2)(B) permits a court to dismiss
a suit “any time [ ] the court determines that . . . the action . . . (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B).
Mr. Smith initiated this case by filing a notice of removal (ECF No. 1) of
what appears to be a foreclosure proceeding in Broward County circuit court.
In the notice, Mr. Smith attempts to invoke the Court’s diversity jurisdiction
under 28 U.S.C. section 1332.1
“A district Court can hear a case only if it has at least one of three types
of subject matter jurisdiction: (1) jurisdiction under specific statutory grant; (2)
federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a).” Thermoset Corp. v. Bldg.
Materials Corp. of Am., 849 F.3d 1313, 1317 (11th Cir. 2017) (quoting PTA-FLA,
Inc. v. ZTE USA, Inc. 844 F.3d 1299, 1305 (11th Cir. 2016)) (internal quotations
omitted). “When a plaintiff files in state court a civil action over which the
federal district courts would have original jurisdiction based on diversity of
citizenship, the defendant or defendants may remove the action to federal
Mr. Smith also mentions that this Court has federal question jurisdiction
under 28 U.S.C. section 1331, but upon review none of his proposed claims
involve a federal question.
1

court, provided that no defendant is a citizen of the state in which the action
was brought.” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 69 (1996). Thus, where a
defendant is a citizen of Florida at the time of removal, the district court lacks
diversity jurisdiction. Thermoset Corp., 849 F.3d at 1317. Upon a review of the
notice, Mr. Smith admits that he is a citizen of the state of Florida. (See ECF
No. 1 at 3.) As a result, the Court lacks subject matter jurisdiction and removal
of the underlying action in this case is improper. In addition, although Mr.
Smith attempts to assert claims related to the propriety of the underlying
foreclosure, he may not do so in a notice of removal, and the notice therefore
fails to state a claim for which relief may be granted.
Accordingly, this case is remanded to state court. The Clerk is directed
to close this case and take all necessary steps to ensure the prompt remand of
this matter and the transfer of this file back to the Circuit Court for the 17th
Judicial Circuit in and for Broward County. Mr. Smith’s motion for leave to
proceed IFP (ECF No. 3) is therefore denied as moot.
Done and ordered at Miami, Florida, on June 21, 2018.

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