Opinion
Case No: 8:22-cv-734-MSS-AEP
2022-09-13
KONCEPT PROPERTIES INC., Plaintiff, v. Ross SCOPELLITI, Defendant.
Bo Kyung Sellitti, Michael J. Bayern, Lieser Skaff Alexander, PLLC, Tampa, FL, Christophe Fiori, Law Office of Christopher Fiori, PLLC, Tampa, FL, for Plaintiff. Ross Scopelliti, Tampa, FL, Pro Se.
Bo Kyung Sellitti, Michael J. Bayern, Lieser Skaff Alexander, PLLC, Tampa, FL, Christophe Fiori, Law Office of Christopher Fiori, PLLC, Tampa, FL, for Plaintiff. Ross Scopelliti, Tampa, FL, Pro Se. ORDER MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court for consideration of Koncept Properties, Inc.'s and Jeff Boyd's Amended Motion to Remand to State Court for Lack of Subject Matter Jurisdiction and Motion for Sanctions, (Dkt. 11), the Response in Opposition thereto, (Dkt. 20), Ross Scopelliti's Motion to Reprimand Attorney Sellitti for Not Following Conferring Requirements as per Local Rule 3.01(g), (Dkt. 22), Koncept Properties, Inc.'s Response to Ross Scopelliti's Motion to Reprimand, (Dkt. 25), Koncept Properties, Inc.'s and Jeff Boyd's Request for Judicial Notice, (Dkt. 23), Scopelliti's Motion for Extension of Time to Respond to same, (Dkt. 26), and Scopelliti's Motion for Leave to Reply. (Dkt. 29)
Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Koncept Properties, Inc.'s and Jeff Boyd's Amended Motion to Remand to State Court for Lack of Subject Matter Jurisdiction and Motion for Sanctions and DENIES all other pending motions AS MOOT.
I. BACKGROUND
Koncept Properties, Inc., ("Koncept"), a Florida corporation, filed suit against Defendant in the County Court of Hillsborough County, Florida under case number 2021-CC-118805 ("Subject Action") on December 16, 2021. (Dkt. 11 at 3-4) The Subject Action concerns property located in Florida, (the "Subject Property"), that Defendant acquired from Jennifer E. McClean ("McClean"), a Texas resident. In 2012, McClean filed an action in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County Florida under case number 12-CA-010683 ("Foreclosure Action") to foreclose upon the Subject Property owned by Terrence ("Nero"), a Florida Resident. (Id. at 2) Defendant, a Florida Resident, was also named in the Foreclosure Action as a tenant in possession of the subject property. (Id.)
On October 28, 2019, the Foreclosure Action was removed to the United States District Court for the Middle District of Florida, Tampa Division and assigned case number 8:19-cv-2678 (the "First Removal Matter"). (Dkt. 11 at 2) On October 30, 2019, United States Magistrate Judge Amanda Arnold Sansone entered a Show Cause Order directing Defendant to show cause and explain how removal of the pending state action is proper because Defendant is a resident of Florida. (Dkt. 11, Ex. A) Subsequently, on December 23, 2019, United States District Judge William F. Jung remanded the First Removal Action to the Circuit Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida because Defendant did not provide a basis for removal under diversity jurisdiction. (Id., Ex. B) After remand of the First Removal Matter, McClean filed suit against Nero, and Nero on January 15, 2020, "attempted to remove the case to federal court, without naming Scopelliti as a party or providing notice of his consent to removal." (Id., Ex. C at 2) The Foreclosure Action was once again removed to the United States District Court for the Middle District of Florida, Tampa Division and assigned case number 8:20-cv-108 ("Second Removal Matter"). (Id. at 3) On April 30, 20220, United States District Judge Tom Barber remanded the Foreclosure Action to the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida for several reasons, including lack of federal and diversity jurisdiction, and warned Nero that "if he continues to improperly remove state court cases, he will be subject to sanctions." (Id. at 4) (citing to Retreat at Stonecrest: Apartments v. Chisolm, No. 1:18-CV-5362-AT, 2018 WL 6715764, at *1 (N.D. Ga. Nov. 29, 2018)).
In the December 2021 Subject Action, Koncept named Defendant seeking possession of the Subject Property and related damages. (Id. at 5) Defendant then filed his Answer, Affirmative Defenses, Counterclaim, Cross Claim, and Demand for Jury Trial against Koncept and its owner, Jeff Boyd ("Boyd") on December 30, 2021 (the "Crossclaim"). (Id.) After Plaintiff filed the Amended Complaint on March 22, 2022, Defendant filed his Notice of Removal on March 30, 2022. (Dkt. 1) The Amended Complaint names Plaintiff and Defendant as parties. (Dkt. 1-1) Defendant asserts that the Court has diversity jurisdiction, pursuant to 28 U.S.C. § 1332. (Dkt. 1) Defendant contends that complete diversity exists because Defendant is a Florida resident, Boyd is a Canadian citizen, and Koncept maintains its nerve center in Canada. (Id. at 2)
Plaintiff now moves to remand the Subject Action to state court because "diversity jurisdiction does not exist here because defendant, Koncept is a Florida citizen" and "there is no other basis for federal jurisdiction[.]" (Id. at 4) Plaintiff also requests that Defendant "be sanctioned for his abuse of the removal process and the assertions made in bad faith." (Dkt. 11 at 8) Defendant, in opposition, contends that the Motion to Remand is untimely because Plaintiff waived the forum-defendant rule by not remanding the Subject Action within thirty days of Defendant's Notice of Removal. (Dkt. 20 at 6-7)
II. STANDARD OF REVIEW
Federal courts are courts of limited jurisdiction. In order to invoke the court's authority over a case, a litigant must demonstrate at least one of three types of subject matter jurisdiction: "(1) jurisdiction under a 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)." Baltin v. Alaron Trading, Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).
28 U.S.C. § 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Diversity jurisdiction exists where: (1) the amount in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs; and (2) is between citizens of different states. 28 U.S.C. § 1332(a). However, 28 U.S.C. § 1441(b) provides that "[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(2).
III. DISCUSSION
As a preliminary matter, the Court addresses Defendant's contention that Plaintiff's Motion to Remand is untimely, pursuant to 28 U.S.C. § 1447. Section 1447, in relevant part, provides that "[a] 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)." Id. (emphasis added). The same statute continues to say that, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Id. Plaintiff is remanding the Subject Action on the grounds that this Court does not have subject matter jurisdiction because there is no diversity jurisdiction or federal question jurisdiction. Thus, Plaintiff's Motion to Remand is timely because it is not governed by the thirty-(30)-days requirement imposed by 28 U.S.C. § 1447 for procedural defects.
Turning to the merits, the Court finds that there is no diversity jurisdiction because there is a lack of complete diversity. Additionally, it is likely that Plaintiff's claim does not meet the amount-in-controversy requirement of greater than $75,000.000. First, Defendant and Plaintiff are both citizens of Florida which destroys complete diversity. A district court has original jurisdiction over all cases where all parties on one side of the case are citizens of different states than all parties on the other side of the litigation and where the amount in controversy exceeds $75,000. Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 412 (11th Cir. 1999) (citing to 28 U.S.C. § 1332(a)). "When jurisdiction is predicated on diversity of citizenship, all plaintiffs must be diverse from all defendants." Id. Corporations have dual citizenship for the purposes of diversity jurisdiction. Fritz v. Am. Home Shield Corp., 751 F.2d 1152, 1153 (11th Cir. 1985). (citing to 28 U.S.C.A. § 1332(c)). Section 1332(c) provides that "a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business[.]" 28 U.S.C. § 1332(c). Here, there is a lack of complete diversity of citizenship because Plaintiff Koncept and Defendant are both citizens of Florida. Boyd may be a foreign citizen, but Plaintiff Koncept is a Florida citizen because it is incorporated in Florida. (Dkt. 11 at 3) Defendant may contend that Koncept's nerve center exists in Canada; however, corporations have "dual citizenship for purposes of diversity jurisdiction." Fritz, 751 F.2d at 1153. As such, Koncept is a citizen of Florida for diversity jurisdiction purposes. Defendant is a citizen of Florida, too. Because all plaintiffs are not diverse from all defendants, diversity jurisdiction does not exist. Univ. of S. Alabama, 168 F.3d at 412.
The Court also notes that the "status of the case as disclosed by plaintiff's complaint is controlling in the case of a removal." Novastar Mortg., Inc. v. Bennett, 173 F. Supp. 2d 1358, 1361 (N.D. Ga. 2001) , aff'd, 35 F. App'x 858 (11th Cir. 2002) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). Thus, Plaintiff's complaint only includes citizens of Florida, and Defendant cannot rely on his counterclaim against Boyd (assuming he and Koncept were only Canadian citizens) to invoke the Court's diversity jurisdiction. Team Real Est. Mgmt. v. Smith, No. 114CV02596WSDJFK, 2014 WL 12861344, at *1 n.1 (N.D. Ga. Aug. 19, 2014), report and recommendation adopted, No. 1:14-CV-2596-WSD, 2014 WL 12861402 (N.D. Ga. Nov. 19, 2014).
Second, although the Court does not have to reach this question, it would appear that Plaintiff's claims in the Subject Action do not meet the amount-in-controversy requirement of greater than $75,000.00. The removing party "bears the burden of proving that federal jurisdiction exists" and "[w]here, [ ] the plaintiff has not pled a specific amount of damages; the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirements." Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). If the complaint does not claim a specific amount of damages, "removal from a state court is proper if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional amount." Id. If not facially apparent, then the court may look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed. Id. "A conclusory allegation in the notice of removal that the jurisdictional amount is satisfied, without setting forth the underlying facts supporting such an assertion, is insufficient to meet the defendant's burden." (Id. at 1319-20). Here, the Subject Action's Amended Complaint does not claim a specific amount of damages, and it is not facially apparent from the complaint that damages are greater than $75,000.00. (Dkt. 1-1) Defendant's Notice of Removal asserts that the controversy exceeds the sum of $77,000. (Dkt. 1 at 2)
For this claim, Defendant states that "the damages in question are evidenced in claims in 8:20cv00104." (Id. at 4) 8:20-cv-00104 apparently refers to Defendant's complaint against Jennifer McClean for a variety of claims before United States District Judge Charlene E. Honeywell. (8:20-cv-00104-CEH-CPT) The Court finds that this conclusory allegation and this reference to a general docket number not concerning Koncept or Boydowuld are insufficient to meet Defendant's burden of establishing an amount-in-controversy in excess of $75,000.
The Subject Matter also does not raise any issues of federal question; therefore, this Court does not have federal question jurisdiction pursuant to 28 U.S.C. § 1331. Because this Court does not have subject matter jurisdiction, the Subject Action is remanded to the County Court of Hillsborough County, Florida. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").
IV. CONCLUSION
Upon consideration of the foregoing, it is hereby ORDERED as follows:
1. Koncept Properties, Inc.'s and Jeff Boyd's Amended Motion to Remand to State Court for Lack of Subject Matter Jurisdiction and Motion for Sanctions, (Dkt. 11), is GRANTED. This matter is REMANDED to the County Court of Hillsborough County.
2. Defendant is ORDERED to pay Plaintiff's attorneys fees and costs for improper removal. "An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal." 28 U.S.C. § 1447(c). Courts may award fees and costs incurred as a result of removal "where the removing party lacked an objectively reasonable basis for seeking removal." Smith-Varga v. Royal Caribbean Cruises, Ltd., No. 8:13-CV-00198-EAK, 2013 WL 3119471, at *4 (M.D. Fla. June 18, 2013). This test recognizes the "desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party." Id. Removal is objectionably unreasonable where "removal had no basis under the law or facts." Eldred v. Seafarer Expl. Corp., No. 8:13-CV-2696-T-30, 2013 WL 5954788, at *1 (M.D. Fla. Nov. 7, 2013). Here, Defendant has tried to remove prior iterations of the Subject Action before and has failed because the Court has expressly found subject matter jurisdiction to be lacking. (See Dkt. 11, Ex. B) (District Judge William F. Jung remanding the Subject Action to state court and expressly finding "[t]here is no federal subject matter jurisdiction); (see also Id., Ex. C) (District Judge Tom Barber remanding the Subject Action to state court and finding that "[i]t is clear that this case is not removable" for a variety of reasons, including lack of subject matter jurisdiction, and warning Nero "that if he continues to improperly remove state court cases [like the Subject Action], he will be subject to sanctions") Consequently, Defendant should have known that this attempted removal lacks "basis under the law and facts" and is objectively unreasonable. Id. It would appear facially that this removal was just a further attempt at obfuscation and
delay. The awarding of costs and actual expenses promotes the desired outcome to deter removals sought for the purpose of prolonging litigation, as Defendant has attempted to do here several times. As such, pursuant to 28 U.S.C. § 1447(c), the Court ORDERS Defendant to pay any costs and actual expenses incurred by Plaintiff as a result of removal. The Parties are directed to confer in a good faith effort to resolve, without the assistance of the Court, the issue of costs and expenses expended in connection with defeating removal and to file a joint stipulation regarding the amount of costs and expenses within seven (7) days from the date of this Order. If the Parties fail to reach an agreement, then Plaintiff is DIRECTED to submit a brief, with supporting documentation, requesting a particular amount of costs and expenses expended in connection with defeating removal within fourteen (14) days from the date of this Order. Defendant will have seven (7) days thereafter to file his response to such a brief.
3. Ross Scopelliti's Motion to Reprimand Attorney Sellitti for Not Following Conferring Requirements as per Local Rule 3.01(g), (Dkt. 22), Koncept Properties, Inc.'s and Jeff Boyd's Request for Judicial Notice, (Dkt. 23), Scopelliti's Motion for Extension of Time to Respond to same, (Dkt. 26), and Motion for Leave to Reply, (Dkt. 29), are all DENIED.
4. The Court shall retain jurisdiction for the limited purpose of entering judgment against Defendant for Plaintiff's costs and expenses associated with defeating the removal. Once the case is remanded, the Clerk is directed to terminate any pending motions and deadlines and CLOSE THIS CASE.
DONE and ORDERED in Tampa, Florida, this 13th day of September, 2022.