Maldonado et al v. Evans

Filing 10

OPINION AND ORDER granting 6 Motion to Remand. This matter is remanded to the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County. All pending motions are denied as moot. This case is CLOSED. Signed by Judge Kenneth A. Marra on 4/21/2014. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-80288-CIV-MARRA/MATTHEWMAN
JUAN MALDONADO et al.,
Plaintiffs,
vs.
SYLVIA JEANNE EVANS, individually
and as personal representative of the
Estate of Nelson Julio Hernandez,
Defendant.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant’s Motion for Remand (DE 6). The Court
has carefully considered the Motion and is otherwise fully advised in the premises.
I. Background
This case involves the removal of a state court action involving the probate of the will of
Nelson Julio Hernandez (“decedent”). Sylvia Jeanne Evans (“Evans”), who has been named as
Defendant in this action, has been appointed the personal representative of the decedent by the
probate division of the Circuit Court of Palm Beach County. (Letters of Administration, DE 6-1.)
Juan Maldonado, who proceeds as a Plaintiff in this action1 and acts as power of attorney for
Faustino Alfonoso Garcia Abislaiman and Polo Real Estate Company, filed a verified petition for
revocation of probate, objection to the notice of administration and removal of personal
representative in the state court probate action and filed an adversarial action against Evans in the
state probate court. (Pet. for Revocation of Probate, DE 6-2; Motion to Freeze, DE 6-3.) On
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Polo Real Estate Company also proceeds as a Plaintiff in this action.

December 12, 2013 and January 15, 2014, the state court probate judge denied Maldonado’s
motion to freeze assets and the related motions for reconsideration and rehearing. (Order denying
motion, DE 6-4; Order denying motion for rehearing and reconsideration, DE 6-6.) On February
25, 2014, final judgment in favor of Evans and against Maldonado was entered in the state
probate court. (Final Judgment, DE 6-7.)
On February 26, 2014, Maldonado and Polo Real Estate Corporation filed a “Plaintiffs’
Notice of Removal” with this Court. (Notice, DE 1.) The Notice of Removal states “[a]lthough
the Florida probate case was not originally removable when filed, it became removable on
February 14, 2014 when the Notice of Related Cases in Puerto Rico involving the same parties
and contested issues of material fact corresponding to the Puerto Rico law was filed into the
Florida probate case.” (Notice ¶ 2.) The Notice of Removal also states there is complete
diversity between the parties because Abislaiman and Polo Real Estate Company are citizens of
Puerto Rico and Evans is a citizen of Florida and the amount in controversy exceeds $75,000.00
(Notice ¶ 3.) Despite being instructed to file the state court records with this Court, the
removing parties have failed to do so. (DE 3.)
On February 27, 2014, Maldonado and Polo Real Estate Company filed a document
entitled “Plaintiff’s Original Complaint” with this Court. (DE 4.) That two-count Complaint
brings claims for unlawful entry and detention of real property (count one) and conversion (count
two) against Evans.
Evans moves to remand the case and argues that it was improper for Plaintiffs to remove
the case, that Plaintiffs actively litigated the case in state court and only sought removal once
they received a final judgment against them. Evans also moves for attorney’s fees.
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II. Discussion
It is axiomatic that federal courts are courts of limited jurisdiction. Russell Corp. v.
American Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). A federal district court may
exercise subject matter jurisdiction over a civil action in which only state law claims are alleged
if the civil action arises under the federal court's diversity jurisdiction. 28 U.S.C. § 1332(a)(1).
Jurisdiction based on diversity of citizenship exists in civil actions where the amount in
controversy exceeds $75,000 and the action is between “citizens of different States.” 28 U.S.C. §
1332(a)(1). “Title 28 U.S.C. § 14462 authorizes removal only by defendants and . . . [p]laintiffs
cannot remove.” Ballard’s Svc. Ctr., Inc. v. Transue, 865 F.2d 447, 449 (1st Cir. 1989); Untracht
v. Fikri, 454 F. Supp. 2d 289, 328 (W.D. Pa. 2006) (“Removal by a plaintiff is not permitted
because the plaintiff had the original choice of forum”). Removal jurisdiction is construed
narrowly with all doubts resolved in favor of remand. See Pacheco de Perez v. AT & T Co., 139
F.3d 1368, 1373 (11th Cir. 1998). The removing party has the burden of demonstrating the
propriety of removal. Diaz v. Shepard, 85 F.3d 1502, 1505 (11th Cir. 1996).
Here, there are numerous grounds to grant the motion for remand. First and foremost, a
plaintiff cannot remove a case to federal court. See Ballard’s, 865 F.2d at 449. Only a defendant
can. Second, “litigating a case on the merits” waives the right to remove a state court action to
federal court. Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246
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Title 28 U.S.C. § 1446 provides in part:

(a) Generally.--A defendant or defendants desiring to remove any civil action from a State
court shall file in the district court of the United States for the district and division within
which such action is pending a notice of removal . . . .
28 U.S.C. § 1446 (emphasis added).
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(11th Cir. 2004). Here, Maldonado filed numerous motions in state court and judgment was
entered against him. It was at that point Maldonado sought to remove the case. Lastly, under 28
U.S.C. § 1446(b),3 removal of an action must be filed within 30 days after receipt by the
defendant of the initial pleading. Bailey v. Janssen Pharm., Inc., 536 F.3d 1202, 1204-05 (11th
Cir. 2008). Thus, even if Plaintiffs were able to remove a case to federal court, they did not do
so in a timely fashion.4 For these reasons, the motion for remand is granted.
Finally, the Court finds that Evans is entitled to attorney’s fees and costs pursuant to 28
U.S.C. § 1447(c). See Liebig v. DeJoy, 814 F. Supp. 1074, 1077 (M.D. Fla. 1993) (“The award
of attorney's fees and costs under this section is completely discretionary with the trial court.”)
“The appropriate test for awarding fees under § 1447(c) should recognize Congress' desire to
deter removals sought for the purpose of prolonging litigation and imposing costs on the
opposing party” and this determination “should turn on the reasonableness of the removal.”

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Title 28 U.S.C. § 1446(b) provides:

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).
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The removing parties attempt to circumvent the 30 day requirement by citing to the
filing on February 14, 2014 of a document described as a “Notice of Related Cases in Puerto
Rico involving the same parties and contested issues of material fact corresponding to the Puerto
Rico law.” This document has not been filed with the Court. Nevertheless, based on its title, the
Court can see no basis for concluding that it would constitute a “paper from which it may first be
ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). If
the asserted jurisdictional basis for removal is diversity of citizenship, the facts supporting such
jurisdiction were know at the outset of Plaintiffs’ involvement in the state court proceedings.
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Martin v. Frankling Capital Group, 546 U.S. 132, 136 (2005). Simply put, Plaintiffs had no
objectively reasonable basis for removing this case. In their response to the motion to remand,
Plaintiffs only refer to the asserted fact that diversity of citizenship jurisdiction exits. Plaintiffs
completely ignore all of the procedural deficiencies in their attempt to remove this case,
particularly the fact that they are plaintiffs who cannot remove a case, and the fact that the case
was not removed timely. Evans may recover the actual amount of attorney’s fees and costs
incurred as a result of improper removal of this action, subject to the Court’s approval.
III. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for
Remand (DE 6) is GRANTED. This matter is REMANDED to the Circuit Court of the
Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. Evans shall have 14 days
from the date of entry of this Order to submit to this Court her submission indicating the
actual expenses and attorney's fees incurred with respect to the improper removal of this action.
The Clerk shall close this case and all pending motions are denied as moot.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 21st day of April, 2014.
______________________________________
KENNETH A. MARRA
United States District Judge

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