Bank of New York Mellon v. Cata
| Bank of New York Mellon |
| Francisco M. Cata |
| 1:2019cv23312 |
| August 7, 2019 |
| US District Court for the Southern District of Florida |
| K Michael Moore |
| Negotiable Instrument |
| 28 U.S.C. ยง 1441 |
| Defendant |
Docket Report
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| Filing 7 ACKNOWLEDGMENT OF RECEIPT as to #6 Transmittal Letter Sent, 5 Order Remanding Case to State Court. (kpe) |
| Filing 6 Transmittal Letter Sent with Order of Remand to: 11th Judicial Circuit for Miami-Dade. State Court Case Number: 18-014305-CA-01 (cqs) |
Filing 5
PAPERLESS ORDER. THIS CAUSE came before the Court upon a sua sponte examination of Pro Se Defendant Francisco M. Cata's Notice of Removal [1 ]. On August 7, 2019, Defendant filed the Notice of Removal. On August 9, 2019, this Court reviewed the Notice of Removal and ordered Defendant to show cause by August 19, 2019 why this Court has removal jurisdiction to adjudicate this case. 4 . Defendant has failed to do so. As stated previously, it appears from the Notice of Removal that Defendant asserts federal question removal jurisdiction pursuant to 28 U.S.C. 1441(a) as Defendant stated that he "has discovered several federal violations and extensive fraud in regard to the alleged mortgage loan and transactions associated with it on real property." #1 at 2. However, Defendant does not specify what these alleged federal violations are and Plaintiff's Complaint alleges only state-law claims of Mortgage Foreclosure. Compl. [1-2] at 1-2. Accordingly, the case is not removable because it is Plaintiff's claims that establish the basis for jurisdiction, not Defendant's potential cross-claims. See Kemp v. Int'l Bus. Machs. Corp., 109 F.3d 708, 712 (11th Cir. 1997) ("Because a federal question must appear on the face of the plaintiff's complaint... a defense which presents a federal question can not create removal jurisdiction."). Further, this Court also noted that a notice of removal must be filed within 30 days of a defendant being served with the initial pleading. 28 U.S.C. 1446(b)(1). The Complaint is dated May 1, 2018 and it is unclear whether the notice of removal was timely. "The removing defendant bears the burden of establishing federal jurisdiction." Parham v. Osmond, No. 8:19-CV-592-T-60SPF, 2019 WL 3822193, at *1 (M.D. Fla. Aug. 15, 2019). "Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly." Univ. of So. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). All doubts about jurisdiction should be resolved in favor of remand. Id. UPON CONSIDERATION of the Notice of Removal, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the above-styled matter is REMANDED to the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The Clerk of Court is instructed to CLOSE this case. All pending motions are DENIED AS MOOT. Signed by Chief Judge K. Michael Moore on 8/20/2019. (jm01)
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Filing 4
PAPERLESS ORDER TO SHOW CAUSE. THIS CAUSE came before the Court upon a sua sponte examination of Pro Se Defendant Francisco M. Cata's Notice of Removal #1 . Defendant filed the Notice of Removal on August 7, 2019. It appears from the Notice of Removal that Defendant asserts federal question removal jurisdiction pursuant to 28 U.S.C. 1441(a). Defendant asserts that Defendant "has discovered several federal violations and extensive fraud in regard to the alleged mortgage loan and transactions associated with it on real property." #1 at 2. Defendant does not specify what these alleged federal violations are. Additionally, Plaintiff's Complaint alleges only state-law claims of Mortgage Foreclosure. Compl. [1-2] at 1-2. It therefore seems the case is not removable. Ervast v. Flexible Prods. Co., 346 F.3d 1007, 1012 (11th Cir. 2003). Plaintiff's claims establish the basis for jurisdiction, not Defendant's potential cross-claims. See Kemp v. Int'l Bus. Machs. Corp., 109 F.3d 708, 712 (11th Cir. 1997) ("Because a federal question must appear on the face of the plaintiff's complaint... a defense which presents a federal question can not create removal jurisdiction."). Lastly, a notice of removal must be filed within 30 days of a defendant being served with the initial pleading. 28 U.S.C. 1446(b)(1). Here, Defendant does not allege when he was served, and the Complaint is dated May 1, 2018. In light of the foregoing, Defendant is hereby ORDERED TO SHOW CAUSE by August 19, 2019, why this Court has removal jurisdiction to adjudicate this case. Defendant is hereby on notice that failure to respond to this Order to Show Cause by the deadline may result in sanctions, including remand. Signed by Chief Judge K. Michael Moore on 8/9/2019. (ah03)
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| Filing 3 MOTION for Leave to Proceed in forma pauperis by Francisco M. Cata. (ar2) |
| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Jacqueline Becerra is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (ar2) |
| Filing 1 NOTICE OF REMOVAL (STATE COURT COMPLAINT - Verified Complaint for Foreclosure of Mortgage) Filing fee $400.00. IFP Filed, filed by Francisco M. Cata. (Attachments: #1 Civil Cover Sheet, #2 Exhibit State Court Documents)(ar2) |
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| Defendant: Francisco M. Cata | |
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| Plaintiff: Bank of New York Mellon | |
| Represented By: | Wendy C. Manswell |
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