Case 9:20-cv-81728-DMM Document 28 Entered on FLSD Docket 11/03/2020 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 20-81728-CV-MIDDLEBROOKS

FIRST AMERICAN BANK,

Cen,fi&d to be a true and
cor""9Ct cooy cf the document on fae
Angela E. Noble. Clerk.
Plaintiff, L: S. Distrid Court
Scc,r.eo District cf c•onda

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By Philip Curlis
V. DcDu!Y Cle~.
Date Noy 3. 2020
LAURENCE SCHNEIDER, et al.,

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Defendants.
_______ _______ ______/

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ORDER REMANDING CASE

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THIS CAUSE comes before the Court upon Plaintiff's Motion to Remand (DE 7), filed on

October 1, 2020, and Motion to Enjoin Abusive Litigation Tactics (DE 16), filed on October 21,
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2020. Defendants Laurence Schneider and Stephanie L. Schneider are proceeding pro se in this
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matter. Defendants' response to Plaintiff's Motion to Remand was due on October 15, 2020;
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therefore, on October 22, 2020, when no response had been filed, I entered an Order directing

Defendants to show cause in writing why the Motion should not be granted. (DE 22). The Motion
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is now fully briefed. (DE 25; DE 27). For the following reasons, the Motion to Remand is granted,
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and the Motion to Enjoin Abusive Litigation Tactics is denied.

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I. BACKGROUND
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Plaintiff initiated this residential foreclosure action against Defendants, among others, on
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August 17, 2016, in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach

County, Florida. (DE 1-1 at 3 in Case No. l 7-cv-80723 (the "2017 Middlebrooks Case")).

On June 9, 2017, Defendants first removed this action to federal court. (DE 1 in the 2017

Middlebrooks Case). The Notice of Removal appeared to claim that the action was removable

FILED: PALM BEACH COUNTY, FL SHARON R. BOCK, CLERK 11/6/2020 3:32:56 PM

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based on federal question jurisdiction because Defendants had filed counterclaims that were based

on federal statutes. (See id). Therefore, I entered an Order advising that "a counterclaim -which

appears as part of the defendant's answer, not as part of the plaintiff's complaint--ca nnot serve as

the basis for 'arising under' jurisdiction," and directing Defendants to show cause as to why the

case should not be remanded or, alternatively, consent to remand. (DE 5 in the 2017 Middlebrooks

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Case); Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (citations

omitted). On June 22, 2017, Defendants consented to remand, and as such, I remanded the case

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that same day. (DE 8-1 in the 2017 Middlebrooks Case; DE 9 in the 2017 Middlebrooks Case).

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In consenting to the remand, Defendants stated that they would "pursue their remedies to

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prevent the sale of the subject property in the separately filed action before this Court, Schneider

v. First American Bank, Case No. 9: l 7-cv-80728-DMM." (DE 8-1 in the 2017 Middlebrooks
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Case). Defendants filed that action in federal court four days after first removing the foreclosure
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action in 2017. (DE 1 in the 2017 Middlebrooks Case; DE 1 in Case No. 17-cv-80728). It has since
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been stayed pending final resolution of the foreclosure action. (DE 49 in Case No. 17-cv-80728).

On September 23, 2020, Defendants again removed this action to federal court. (DE 1).
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The present Notice of Removal appears to assert that this Court has subject matter jurisdiction over
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this case based on both federal question and diversity. (See id).
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In its Motion to Remand, Plaintiff claims that Defendants had filed their first Notice of
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Removal twenty days before a hearing in state court on Plaintiff's Motion for Summary Judgment
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in "an effort to preclude or postpone determination of' that motion. (DE 7 at 3). Likewise, Plaintiff

argues that Defendants filed the present Notice of Removal just seven days before the date on

which Defendants were to be removed from the subject property in order "to preclude or delay the

sheriff's execution of the writ of possession." (Id.). In their Response, Defendants assert that "[t ]he

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Motion to Remand should not be granted as the entire history of litigation ... is predicated on an

insurmountable amount of illegal frauds on both state and federal levels with initial and continuous

conspiracy to commit fraud." (DE 24 at 23). Therefore, Defendants appear to rely on Plaintiffs

alleged fraud in the state court action as a basis for asserting federal question jurisdiction.

Plaintiff now moves to again remand this foreclosure action to state court, arguing, in part,

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that this Court does not have subject matter jurisdiction over this case. (DE 7).

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II. LEGAL STANDARD

Any civil action initially brought in a state court may be removed to the proper district

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court if"the district courts of the United States have original jurisdiction." 28 U.S.C. § 144l(a).

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District courts have federal question jurisdiction over "all civil actions arising under the

Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "As a general rule, a case
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arises under federal law only if it is federal law that creates the cause of action." Diaz v. Sheppard,
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85 F.3d 1502, 1505 (11th Cir. 1996) (citing Franchise Tax Bd. of State of Cal. v. Constr. Laborers
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Vacation Tr.for S. California, 463 U.S. 1, 8-10 (1983)).

District courts also have original jurisdiction over civil actions that are between "citizens
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of different States" where the amount in controversy "exceeds the sum or value of $75,000." 28
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U .S.C. § l 332(a). However, "[a] civil action otherwise removable solely on the basis of [diversity]
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jurisdiction ... may not be removed if any of the parties in interest properly joined and served as
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I need not reach Plaintiffs remaining arguments. I also note that Plaintiff filed a Motion to Enjoin
Abusive Litigation Tactics, in which it requests that the Court enjoin Defendants from, among
other actions, removing this action again. (DE 16 at 14). I have considered Plaintiff's arguments,
but I decline to sanction Defendants. Over three years have elapsed since Defendants' last removal
of this action and Defendants assert, albeit erroneously, that "new information" supported this
second removal. (Compare DE 1 in the 2017 Middlebrooks Case, with DE l; see DE 24 at 3-4,
12). Defendants have taken positions in this litigation that are untenable, but I do not find that their
tactics in federal court have been abusive or that their conduct before this Court is sanctionable.
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defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(6)(2).

III. DISCUSSION

No basis exists for the exercise of subject matter jurisdiction over this case. First, this action

does not arise under federal law because there is no federal question presented by the underlying

residential foreclosure complaint. Defendants assert in their Response that Plaintiff and its counsel

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"have violated numerous federal laws and defrauded the Court, contributing to [Plaintiffs]

fraudulent foreclosure and money judgments." (DE 24 at 3). Such assertions fail to render the

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foreclosure action properly removable to federal court, as federal law did not create Plaintiff's

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causes of action. See Diaz, 85 F.3d at 1505. Further, Defendants are reminded that a notice of

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removal is not the proper vehicle by which to raise independent federal claims against Plaintiff.

Defendants also assert diversity jurisdiction as a basis for removal. (DE 1 at 5). Because I
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find that this Court does not have federal question jurisdiction over this case, the only other basis
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for removal is diversity jurisdiction. However, this case may not be removed on that basis because
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Defendants are citizens of Florida, the state in which the foreclosure case was initiated. 28 U.S.C.

§ 144l(b)(2); (DE lwl at 29 in the 2017 Middlebrooks Case; DE I at 2 in Case No. l 7-cvw80728).
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IV. CONCLUSION
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Based upon the foregoing, it is ORDERED AND ADJUDGED that:

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(1) Plaintiffs Motion to Remand (DE 7) is GRANTED.

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(2) Plaintiffs Motion to Enjoin Abusive Litigation Tactics (DE 16) is DENIED.
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(3) This action is REMANDED to the Circuit Court of the Fifteenth Judicial Circuit in

2 Defendants appear to be aware of one proper vehicle for such claims, as they noted, in consenting
to the first remand, that they would "pursue their remedies to prevent the sale of the subject
property in the separately filed action before this Court, Schneider v. First American Bank, Case
No. 9:17wcv-80728-DMM." (DE 8-1 in the 2017 Middlebrooks Case).
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and for Palm Beach County, Florida.

(4) The Clerk of the Court shall CLOSE THIS CASE in this District.

(5) The Clerk shall also DENY all pending motions AS MOOT.

SIGNED in Chambers in West Palm Beach, Florida, this 3rd day of November, 2020.

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Donald M. Middlebrooks
United States District Judge

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cc: Counsel of Record

Laurence Schneider, pro se

Stephanie L. Schneider, pro se
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17685 Circle Pond Court
Boca Raton, FL 33496
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