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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

THE BANK OF NEW YORK MELLON 

TRUST COMPANY, N.A., 

f/k/a THE BANK OF NEW YORK 

TRUST COMPANY, N.A., 

as SUCCESSOR TO 

JPMORGAN CHASE BANK, N.A.

as TRUSTEE FOR RASC 2002KS4

Plaintiff,

v. CASE NO. 1:10-cv-00221-SPM -GRJ

FRANK C. JOHNSON, JR.,

a/k/a FRANK JOHNSON, JR., and

RUTH B. JOHNSON,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Pending before the Court is Plaintiff’s Motion For Remand And Request For

Expedited Ruling. (Doc. 11.) Defendants have filed a document entitled “Motion For

The Court For Leave To File Defendants Oppose Motion Of The Plaintiff, To Remove

The About Case Back To State Court” (Doc. 12), which the Court has considered as

Defendants’ response to Plaintiff’s motion. The motion is, therefore, ripe for review. 

For the reasons discussed below, Plaintiff’s Motion For Remand And Request For

Expedited Ruling (Doc. 11) is due to be GRANTED. 

I. Background and Facts

This case is a foreclosure proceedings filed by Plaintiff in the Circuit Court for the

Eighth Judicial Circuit in and for Alachua County, Florida to foreclose on a mortgage

secured by real property in Gainesville, Florida owned by Defendants. 
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The material facts, as disclosed in the pleadings filed in the state court action,

are as follows. Defendants obtained a mortgage on April 10, 2002 from Mercantile

Mortgage Company Corporation in the amount of $61,200, secured by real property

located at 2960 SE 18 Avenue, Gainesville, Florida, 32674. The mortgage was th

assigned by Mercantile Mortgage Company Corporation to JPMorgan Chase Bank,

N.A. (“JPMorgan”) as Trustee. Defendants failed to make the monthly payment due on

December 15, 2003 as well as all other payments required under the mortgage that

came due after December 15, 2003. In March 2004 JPMorgan instituted foreclosure

proceedings in the Circuit Court for the Eighth Judicial Circuit in and for Alachua

County, Florida, case No. 04-CA-1039. That case did not proceed to a final judgment

of foreclosure.

The state court case – removed to this Court - concerns another mortgage

foreclosure action filed by the mortgage holder. In this case, Bank of New York Mellon,

N.A. f/k/a/ The Bank of New York Trust Company, N.A. as Successor to JPMorgan

Chase Bank, N.A. as Trustee for RASC 2002KS4 instituted foreclosure proceedings on

September 14, 2008 against Defendants in the Circuit Court for the Eighth Judicial

Circuit in and for Alachua County, Florida, case No. 08-CA-5581 (the State Court

Foreclosure Action”.) On February 17, 2009 Defendants unsuccessfully removed this

same case to this Court. This Court remanded the case in an order dated November 4,

2009 because the Court did not have subject-matter jurisdiction over the case. See,

The Bank of New York Mellon Trust Company NA v. Frank Johnson, Jr. Ruth B.

Johnson, no. 1:09-CV-34-MP-AK (N.D. Fla. filed Nov. 4, 2009) 

After the case was remanded to the state court and about eleventh months later,
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on September 29, 2010 Plaintiff filed a Motion For Summary Judgment And Final

Judgment Of Mortgage Foreclosure in the State Court Foreclosure Action. On

November 9, 2010, the state court entered an Amended Final Summary Judgment Of

Foreclosure granting Plaintiff’s Motion For Summary Judgment And Final Judgment Of

Mortgage Foreclosure in its entirety and setting the sale of the property for December 3,

2010. Defendants then without any legally cognizable basis again removed the State

Court Foreclosure Action to this Court on the next day, November 10, 2010. (Doc. 1.) 

II. DISCUSSION

There are absolutely no legal grounds for removal of this case. There is no better

evidence of this than the fact that Defendants already unsuccessfully attempted to

remove this same case to this Court in 2009. In Defendants’ failed previous attempt to

remove the foreclosure action, the Court promptly remanded the case to state court

appropriately noting in its remand order that “the Defendants have consistently made

no attempt whatsoever to support federal jurisdiction in this case.” See, The Bank of

New York Mellon Trust Company NA v. Frank Johnson, Jr. Ruth B. Johnson, no. 1:09-

CV-34-MP-AK (N.D. Fla. filed Nov. 4, 2009).

Almost one year later Defendants have removed the case - again without any

legal basis. The removal this time suffers from numerous fundamental flaws and must

be remanded to state court because there is no basis for federal jurisdiction – and

even if there was – removal of this action two years after it was filed in state court is

untimely. 

Under 28 U.S.C. § 1441(a) & (b), a defendant may only remove a case in which

the federal district court would have original jurisdiction over the action. This means
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that for removal to be proper there must be a federal question present in the case or

there must be diversity jurisdiction. 

With regard to federal question jurisdiction, it is axiomatic that for the federal

court to have original jurisdiction over an action, “[t]he grounds for removal must inhere

in the plaintiff’s claim, rather than be based on a defense or counterclaim.” 14C

CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER & JOAN E. STEINMAN.,

FEDERAL PRACTICE AND PROCEDURE § 3721 (4 ed. 2009). A removing defendant may th

not create jurisdiction by raising a federal question defensively except in very limited

circumstances, such as where state law has been completely preempted by federal law. 

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-94 (1987). That is exactly what

Defendants have attempted to do. Without even filing a claim in the state court action

raising a federal question, Defendants suggest in their response to the motion to

remand that in some vague and unspecified way their civil rights were violated by

Plaintiff’s attorneys. (Doc. 12-1 p. 4.) Whether that has or has not occurred is

completely irrelevant to the determination of whether this case can be removed. 

While Defendants may bring federal claims against Plaintiff or Plaintiff’s counsel,

if they so choose (subject to the constraints of Rule 11 of the Federal Rules of Civil

Procedure), Defendants may only do so by initiating a separate and independent action

in federal court. They cannot, however, attempt to create federal question jurisdiction

for removal purposes by alleging federal claims defensively to the foreclosure action. 

The state court action is a straight - forward mortgage foreclosure action under Florida

law and does not raise any federal questions in the complaint. Accordingly, because

there are no federal questions raised in the complaint filed in the State Court
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Foreclosure Action, Defendants’ attempt to remove the case was improper, thus,

mandating that the Court remand this action to state court 

The case also cannot be removed based upon diversity jurisdiction for the simple

reason that only an out-of-state defendant can remove an action to federal court and

not, as here, a Florida citizen. The express language in the removal statute prohibits

removal by citizens of the state in which the action is brought. See, 28 U.S.C. §

1441(b)( [other than federal question actions] “any other such action shall be removable

only if none of the parties in interest properly joined and served as defendants is a

citizen of the State in which such action is brought.” ); Lincoln Property Co. v. Roche,

546 U.S. 81, 90 (2005)(while “an in-state plaintiff may invoke diversity jurisdiction ... §

1441(b) bars removal on the basis of diversity if any ‘part[y] in interest properly joined

and served as [a] defendan[t] is a citizen of the State in which [the] action is brought.’” ). 

Simply stated, a defendant who is a citizen of the State of Florida cannot remove an

action to federal court based upon diversity jurisdiction even if there is complete

diversity between the parties. Tillman v. R.J. Reynolds Tobacco, 253 F.3d 1302, 1305

(11 Cir. 2001)(“For removal under 28 U.S.C. § 1441 to be proper, no defendant can be th

a citizen of the state in which the action was brought.”); McMahon v. Presidential

Airways, Inc., 410 F. Supp. 2d 1189, 1194-95 (M.D. Fla. 2006)(“Although the parties ...

are completely diverse, it is undisputed that removal was not proper on the basis of

diversity of citizenship because the Defendants are Florida residents.”) Because

Defendants are Florida residents, sued in a Florida state court, they cannot remove this

action based upon diversity of citizenship. 

In addition to the fact that there are no grounds for removal, Defendants’
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attempted removal is fundamentally flawed because the removal is untimely having

been filed two years after the state court foreclosure action was filed. Pursuant to 28

U.S.C. § 1446(b) a notice of removal must be filed “within thirty 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 . . .” Here, Plaintiff

filed its foreclosure complaint in state court on November 3, 2008. Defendants

removed the case on November 10, 2010 – the day after the state court entered an

order setting the sale of the property at issue – two years late and in an obvious 

attempt to delay the foreclosure sale. 

Lastly, the Court must address Plaintiff’s request for attorney’s fees and

expenses. 28 U.S.C. § 1447(c) provides in relevant part that “[a]n order remanding the

case may require payment of just costs and any actual expenses, including attorney

fees, incurred as a result of the removal.” The United States Supreme Court has held

that “[a]bsent unusual circumstances, courts may award attorney’s fees under §1447(c)

only where the removing party lacked an objectively reasonable basis for seeking

removal. Conversely, where an objective reasonable basis exists, fees should be

denied.” Martin v. Franklin Capital Corp., 126 S.Ct. 704, 711 (2005). 

This case presents a textbook example of a removal where the removing party

had no basis, whatsoever, for removal, let alone an objectively reasonable basis. There

is a complete absence of any argument to support either federal question jurisdiction or

diversity jurisdiction. Moreover, in addition to the fact that the removal was filed two

years too late, and is untimely, the Defendants’ failed attempt to remove a year ago

was rejected by this Court because Defendants “consistently made no attempt
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whatsoever to support federal jurisdiction,” a statement equally applicable to

Defendants’ removal this time. It is apparent that the only reason Defendants removed

this action was to delay the state foreclosure action. Consequently, because there is

absolutely no objectively reasonable basis for removal Plaintiff’s request for fees and

expenses is due to be granted.

IV. RECOMMENDATION

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff’s Motion

For Remand And Request For Expedited Ruling (Doc. 11) should be GRANTED. This

case should be remanded to the Circuit Court for the Eighth Judicial Circuit in and for

Alachua County, Florida. Furthermore, Plaintiff is entitled to an award of attorney’s fees

and expenses. In order to determine the amount of attorney’s fees and expenses to be

awarded, Plaintiff shall file within five (5) days an affidavit detailing the attorney’s fees

and expenses incurred by Plaintiff in bringing this motion. Defendants shall have five (5)

days after receipt of Plaintiff’s affidavit to file a response. Upon receipt of Plaintiff’s

affidavit and Defendant’s response, if any, the Court will issue a report and

recommendation regarding the amount of attorney’s fees and expenses to be awarded

to Plaintiff.

IN CHAMBERS this 24 day of November 2010. 

th

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written

objections to the proposed findings and recommendations within 14 days after
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being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 days after being served with

a copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.