JOHN E. STEELE, Senior District Judge.
This matter comes before the Court on plaintiff's Motion for Remand of Action to the State Circuit Court (Doc. #12) filed on July 27, 2016, to which defendant Owen Bedasee filed a Response (Doc. #17) on August 11, 2016. Also before the Court are defendants Owen Bedasee and Sandie Bedasee's
The Complaint was originally filed in Collier County Circuit Court on March 24, 2008, seeking to recover on a $320,000 promissory note secured by a mortgage on real property located in Naples, Florida. (Doc. #2.) Defendants defaulted on or about September 1, 2007, with a remaining balance of $311,421.16, plus interest, late charges, and expenses. (
In November of 2013, Summary Judgment was entered in favor of National City Bank, and on August 12, 2014, a Final Judgment of Foreclosure was entered on the docket and the foreclosure was scheduled. (
Following the Second DCA's decision, Owen Bedasee removed the case to the United States District Court for the Middle District of Florida, Fort Myers Division. (Doc. #1.) The Notice of Removal, filed by Owen Bedasee only, asserts removal on the basis of diversity jurisdiction under 28 U.S.C. § 1332 and federal question jurisdiction under 28 U.S.C. § 1331. (
Plaintiff moves to remand the action to state court on the following bases: (1) defendant's removal is untimely, (2) Mr. Bedasee's intention to file a new federal action does not cure the untimeliness, (3) the
Defendant responds to plaintiff's Motion to Remand by relying on his separate federal lawsuit, arguing the state court did not have jurisdiction over the foreclosure case, and that he has alleged federal question jurisdiction in his notice of removal. (Doc. #17.)
On a motion to remand, defendant bears the burden of establishing proper subject-matter jurisdiction,
Generally, any civil action brought in a state court of which the federal district court has "original jurisdiction" may be removed by defendants to federal court. 28 U.S.C. § 1441(a).
28 U.S.C. § 1446(b)(1). If the case is not removable based on the initial pleading, "a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."
The Collier County action was filed on March 24, 2008. (Doc. #2.) Defendant First Franklin Financial Corporation was served in April 1, 2008 and defendants Owen Bedasee and Sandie Bedasee were served on April 22, 2008. (Doc. #1-1, p. 1.) The Final Judgment of Foreclosure was entered on August 12, 2014, and following the Second DCA's affirmance of the Final Judgment, Owen Bedasee removed the case to federal court. Upon information and belief, the foreclosure sale has not yet occurred. On July 14, 2016, more than eight years after the action was filed and defendants were served, and almost two years after Final Judgment was entered, defendant Owen Bedasee removed this action.
Defendant has failed to set forth any allegations as to when he became aware that this action was removable, since it does not appear that said basis is apparent from the face of the complaint, nor allegations of bad faith on behalf of the plaintiff in order to prevent defendant's removal of the action. Further, removal after the entry of the final judgment of foreclosure is clearly untimely. In any event, defendant did not obtain the consent of all defendants for the removal.
In objecting to the motion to remand, Mr. Bedasee argues that (1) he has filed a separate federal lawsuit on July 28, 2016, with which the underlying case should be consolidated, (2) that the state court lacked subject matter jurisdiction because National City Bank is not the owner and holder of the note and therefore did not have standing in the state court action, therefore, the judgment entered by the state court is therefore void, and (3) defendant alleged federal question jurisdiction pursuant to section 1331 in his notice of removal. (Doc. #17.)
These arguments are rejected. First of all, the fact that defendant has filed a separate case currently pending in federal court is not justification to remove a state court action in which a final judgment has been entered. Second, there is no indication that a federal claim was presented in the Complaint, and no indication why Mr. Bedasee could not raise any constitutional arguments as a counterclaim or by motion in the state court proceeding. Third, contrary to Mr. Bedasee's objection, state courts have concurrent jurisdiction to hear federal claims, unless Congress provides otherwise.
The
The sole relief sought in the Complaint, and by defendant in the Notice of Removal, has been granted, rejected, or otherwise concluded in the state court, and cannot now be re-litigated or revisited in federal court. Finding no federal jurisdiction, the case will be remanded.
Accordingly, it is hereby
1. Plaintiff's Motion for Remand of Action to the State Circuit Court (Doc. #12) is
2. Sandie and Owen Bedasee's Injunction to Set Aside Foreclosure and Deed (Doc. #3), Owen Bedasee's Motion to Consolidate (Doc. #19), Owen Bedasee's Application for Temporary Restraining Order, Preliminary Injunction, and Declaratory Relief (Doc. #20), and National City Bank's Motion for an Order of Relief from the Related Case Order Entered on July 26, 2016 and Staying the Action Until the Court Rules on the Plaintiff's Motion for Remand (Doc. #21) are
3. The Clerk is directed to remand the case to the Circuit Court of the Twentieth Judicial Circuit, in and for Collier County, Florida, and to transmit a certified copy of this Order to the Clerk of that Court.
4. The Clerk is further directed to terminate all pending motions and deadlines and close this case.
Additionally, "federal jurisdiction generally exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint."
