JOHN E. STEELE, Senior District Judge.
This matter comes before the Court on plaintiff's Motion to Remand (Doc. #8) filed on September 15, 2015. In response, defendant Owen Bedasee filed an Objection to Remand (Doc. #10) and Amended Objection to Remand With Affidavit (Doc. #11). For the reasons stated below, the Court finds no basis to exercise subject-matter jurisdiction and will remand the case.
The Complaint was originally filed in Collier County Circuit Court on February 22, 2008, seeking to foreclose on a $444,000 purchase money mortgage on real property located in Naples, Florida. (Doc. #1-1.) Defendants defaulted on or about September 1, 2007, with a remaining balance of $433,462.15, plus interest, late charges, and expenses. (Doc. #2.) On April 16, 2008, summary judgment was granted in the amount of $461,863.99, plus attorney's fees. On June 13, 2008, a Final Judgment of Foreclosure was entered on the docket, and the foreclosure was scheduled. The sale was cancelled and rescheduled numerous times upon motion by plaintiff, and on November 17, 2008, defendant Sandie Bedasee filed a Suggestion of Bankruptcy prompting a further cancellation. The Bankruptcy Court lifted the automatic stay for purposes of proceeding against the property, and the foreclosure sale was once again rescheduled, and reset several times. The foreclosure sale finally took place on June 10, 2009, and plaintiff filed a Certificate of Sale on the same day. (Doc. #1-1.)
On June 23, 2009, defendant Owen Bedasee filed a Notice of Appeal with the Second District Court of Appeals, and a Certificate of Title was also issued to HSBC Bank USA National Association as Trustee Under the Pooling and Servicing Agreement Dated as of November 1, 2005. On July 16, 2009, defendant Sandie Bedasee joined the appeal by signing an Amended Notice of Appeal. The Florida District Court of Appeals dismissed the appeal as untimely on March 1, 2010, and defendant Owen Bedasee sought relief from the Florida Supreme Court. While the petition was under review, on June 25, 2010, a Writ of Possession was issued and forwarded to the Collier County Sheriff's Office. Mr. Bedasee sought a stay of its execution and filed a Notice indicating that he had filed for bankruptcy. The Chapter 13 case was dismissed by the Bankruptcy Court, and the Florida Supreme Court denied review.
On October 25, 2010, defendant Owen Bedasee sought to set aside the final judgment. The motion was referred to the magistrate judge who issued a report and recommendation. In the interim, defendant filed another Notice of Appeal to the Second District Court of Appeals. On February 10, 2011, an order was issued on the recommendation, and the appeal was later dismissed. Defendant again sought bankruptcy relief, which case was also dismissed by the Bankruptcy Court. Another several appeals were filed, and another petition to the Florida Supreme Court. These were either dismissed, or an order was issued affirming the lower court. Several more suggestions of bankruptcy were also filed, and in August 2015, an appeal was transmitted to the Second District Court of Appeals. That appeal appears to remain pending, and an order to show cause was issued by the Second District Court of Appeals as to why the appeal should not be dismissed. On August 19, 2015, the Circuit Court issued the Writ of Possession. On August 28, 2015, defendant Owen Bedasee's Chapter 13 case was dismissed by the Bankruptcy Court.
On a motion to remand, defendant bears the burden of establishing proper subject-matter jurisdiction,
The Notice of Removal was filed by Owen Bedasee only, and asserts a constitutional challenge to an unspecified Florida statute governing foreclosure proceedings. (Doc. #1.) The Notice of Removal also references a "federal civil suit imminently pending for filing" that Mr. Bedasee would seek to have consolidated with this case, however no such suit is currently pending. (Doc. #1, p. 3.) No specific basis for subject-matter jurisdiction is stated on the face of the Notice of Removal other than the allegations of a due process violation. Therefore, the Court will construe the removal as one based on the presence of a federal question under 28 U.S.C. § 1331. No allegations of citizenship are before the Court, and therefore the Court finds no assertion of removal based on 28 U.S.C. § 1332.
"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)(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."
"[F]ederal jurisdiction generally exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint."
In objecting to the motion for remand, Mr. Bedasee argues that he was never properly served with process in state court and plaintiff never had standing to proceed to judgment in state court. Mr. Bedasee further argues that he objects to a remand because the state court has no jurisdiction to hear his federal claims. (Doc. #10.) These arguments are rejected. First, 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. Second, contrary to Mr. Bedasee's objection, state courts have concurrent jurisdiction to hear federal claims, unless Congress provides otherwise.
"Courts have consistently held that a party is precluded by res judicata from relitigation in the independent equitable action issues that were open to litigation in the former action where he had a fair opportunity to make his claim or defense in that action."
In the Amended Objection, Mr. Bedasee objects to remand because he argues that he was denied due process and equal protection under the Fourteenth Amendment. More specifically, Mr. Bedasee argues that counsel for plaintiff has consistently failed to serve him with motions, that he was never served with process and the state court "turned a blind eye" to this fact, that plaintiff had no authority to seek foreclosure after having filed its own Chapter 11 bankruptcy case, that the mortgage and note were rescinded or are void, and because various federal statutes give this Court authority over the state court proceedings. (Doc. #11.)
The Rooker-Feldman
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