BankUnited v. Blum

Filing 12

ORDER granting 8 Motion to Remand to State Court. This matter is remanded to the Circuit Court of the Fifteenth Judicial Circuit. This case is CLOSED. Motions Terminated: 5 MOTION for Relief from Foreclosure Sale Proceeding Due to Mistake , Inadvertance, Surprise, Excusable Neglect, Fraud, or Misconduct by an Opposing Party filed by Frederick S. Blum, 4 MOTION for Relief from Foreclosure Sale Proceeding Due to Mistake, Inadvertance, Surprise, Excusable Neglect, Fraud, or Misconduc t by an Opposing Party filed by Frederick S. Blum, 8 MOTION to Remand to State Court filed by Glen Garron, LLC. Signed by Judge Kenneth A. Marra on 1/26/2015. (ir) 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
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-81232-CIV-MARRA
BANKUNITED, AS SUCCESSOR
IN INTEREST TO BANKUNITED,
FSB,
Plaintiff,
vs.
FREDERICK S. BLUM,
Defendant.
_________________________/
OPINION AND ORDER REMANDING CASE
THIS CAUSE is before the Court upon Plaintiff’s Motion to Remand and Motion
for Fees [DE 8]. The Court held a status conference in this matter and has carefully
considered the motion, response, and affidavit. In his Notice of Removal of Action
[DE 1], pro se Defendant Frederick S. Blum (“Blum”) states that removal was
appropriate because of federal question jurisdiction and complete diversity of
citizenship, among other reasons. DE 1. Blum answered the state court foreclosure
complaint, proceeded to trial, and on the day before the foreclosure sale, filed his
notice of removal.
Standard of Review
The burden of establishing federal jurisdiction under 28 U.S.C. § 1441 rests
with the party seeking removal. Carson v. Dunham, 121 U.S. 421, 425 (1887);
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001); Ray v. Bird & Son

& Asset Realization Co., 519 F.2d 1081, 1082 (5th Cir. 1975)1 (“The burden of pleading
diversity of citizenship is upon the party invoking federal jurisdiction, and if
jurisdiction is properly challenged, that party also bears the burden of proof”). The
right of removal is strictly construed, as it is considered a federal infringement on a
state's power to adjudicate disputes in its own courts. See Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 108-09 (1941). Thus, when the court's jurisdiction over a
case is doubtful, doubts are resolved in favor of remand. See Crowe v. Coleman, 113
F.3d 1536, 1539 (11th Cir. 1997). Plaintiff rightfully challenges this Court’s subject
matter jurisdiction.
Discussion
After careful review of the Complaint and filings, the Court concludes that it
lacks subject matter jurisdiction. 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). Diversity jurisdiction requires complete
diversity between named plaintiffs and all defendants. Strawbridge v. Curtiss, 7 U.S.
267 (1806) (emphasis supplied).

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth
Circuit rendered prior to the close of business on September 30, 1981.
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Here, although Defendant alleges complete diversity between Plaintiff and
himself, Plaintiff has demonstrated otherwise. Even though the style of the case lists
BankUnited as the Plaintiff, it is apparent from a review of the record that the proper
Plaintiff is Glen Garron, LLC. See DE 8-4 (final judgment for foreclosure in favor of
Plaintiff Glen Garron, LLC); DE 5 at 22 (Order Clarifying Case Style); DE 10 at 29
(summons issued by Blum to Glen Garren, LLC), and Affidavit as to Citizenship of
Todd Peter and Glen Garron, LLC [DE 11]. Blum, Glen Garron, LLC and its sole
member, Todd Peter, are all citizens of Florida. DE 8, Ex. A and E. Therefore,
complete diversity of citizenship as contemplated by § 1441(b) does not exist, and as
a result, this Court is without jurisdiction to entertain this state court action. The
Court’s lack of subject matter jurisdiction may be raised at any time. Harrell &
Sumner Contracting Co. v. Peabody Petersen Co., 546 F.2d 1227 (5th Cir. 1977).2
Therefore, the fact that Plaintiff delayed in moving to remand cannot confer
jurisdiction over the case when none exists. See 28 U.S.C. § 1447(c)(“A motion to
remand the case on the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of the notice of removal
under section 1446(a).”)(emphasis added). Thus, the complaint suffers from a lack of
complete diversity.
Blum also attempted to create federal question jurisdiction where there was
none raised in the state court foreclosure complaint by making allegations of

2

See note 1 supra.
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violations of the Fair Debt Collection Practices Act in his Notice of Removal. Whether
federal question jurisdiction exits is determined by the “well-pleaded-complaint
rule,” which provides whether a case “arises under” federal law “must be determined
from what necessarily appears in the plaintiff’s statement of his own claim.” Homes
Group, Inc. v. Vorando Air Circulation Systems, Inc., 535 U.S. 826, 830 (2002). “The
well-pleaded-complaint rule also governs whether a case is removable from state to
federal court.” Id. at n. 2. Thus, a removing party may not raise a federal question
which would give rise to jurisdiction under 28 U.S.C. § 1331 in his notice of removal.
See Deutsche Bank Nat. Trust Co. v. Benaway, 2013 WL 3270399 *2 (M.D. Fla. 2013).
Hence, this Court lacks subject matter jurisdiction over this case, and it must be
remanded.
Although not controlling, there are several other procedural deficiencies with
the removal which arguably were waived but further demonstrate this case should not
be in this Court. The controlling statute provides that removal from state to federal
court must be within thirty days after service of the complaint on the defendant. See
28 U.S.C. § 1446. In this case, Blum was served with the summons and complaint
almost four years ago, on February 10, 2010. DE 8, Ex. A. Accordingly, Blum’s
removal is almost four years too late.
Additionally, no case may be removed on the basis of diversity of citizenship
jurisdiction more than one year after the commencement of the action. 28 U.S.C.
§ 1446(c). Lopez v. Robinson Aviation (RVA), Inc., No. 10-60241-CIV, 2010 WL

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3584446, at *1-2 (S.D. Fla. Apr. 21, 2010); Ingram v. Forbes Co., LLC, No.
6:13-CV-381-ORL-37, 2013 WL 1760202, at *1 (M.D. Fla. Apr. 24, 2013). Here, the
action was filed over four years ago.
In addition, as a Florida resident, Blum is barred from removing this action
based upon the forum defendant rule. See 28 U.S.C. § 1441(b)(2); Pacheo de Perez v.
AT & T Co., 139 F.3d 1368, 1372 n.4 (11th Cir. 1998); Plombco Inc. v. TBC Retail Grp.,
Inc., No. 13-81026-CIV, 2013 WL 5863571, at *1 (S.D. Fla. Oct. 31, 2013). Thus, it is
clear this case should be resolved in the state court.
Attorney’s Fees and Costs
The Court has discretion to award attorney’s fees and costs associated with the
improper removal and remand of this action. 28 U.S.C. § 1447(c) provides that “[a]n
order remanding the case may require payment of just costs and any actual expenses,
including attorney’s fees, incurred as a result of the removal.” The Supreme Court
has announced a standard to guide district courts in determining whether to award
fees when remanding a case to state court. Martin v. Franklin Capital Corp., 546
U.S. 132 (2005). The Court held that “the standard for awarding fees should turn on
the reasonableness of the removal.” Id. at 711. Generally, the district court should
award fees under § 1447(c) only when “the removing party lacked an objectively
reasonable basis for seeking removal.” Id.
First, Defendant is a pro se litigant, and the Court must afford him some
leeway in this regard. Second, Plaintiff was less than vigilant in moving to remand

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this case. This case sat with no action for 105 days until the Court set a status
conference. Then, on the eve of the hearing, Plaintiff filed the appropriate motion.
While pro se Blum removed this action in error, it was only due to Court initiated
action that Plaintiff saw fit to assert its rights. Under the circumstances, the Court
exercises its discretion to deny the award of attorney’s fees to Plaintiff.
According, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion to Remand [DE 8] is GRANTED
because this Court lacks subject matter jurisdiction. Plaintiff’s Motion for Fees is
DENIED. This matter is REMANDED to the Circuit Court of the Fifteenth Judicial
Circuit, in and for Palm Beach County, Florida. All pending motions are denied as
moot and the clerk shall close the case.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 26th day of January, 2015.

_________________________
KENNETH A. MARRA
United States District Judge

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