Bcc Apartments, Ltd. v. Browning

• Decision Date: 19 August 1997
• Docket Number: No. 97-665-CIV.,97-665-CIV.
• Court: U.S. District Court — Southern District of Florida
• Parties: BCC APARTMENTS, LTD., Plaintiff/Counter-Defendant, v. Lena BROWNING, Defendant/Counter-Plaintiff.

994 F.Supp. 1440

BCC APARTMENTS, LTD., Plaintiff/Counter-Defendant, v. Lena BROWNING, Defendant/Counter-Plaintiff.

No. 97-665-CIV.

United States District Court, S.D. Florida.

August 19, 1997.

Steven Elliott Brooks, Sakowitz & Brooks, Bay Harbor Islands, FL, Harvey Reisenman, Miami, Fl, for Plaintiff.

Randall C. Berg, Jr., Florida Justice Institute, Inc., Mary A. Webster, Legal Services of Greater Miami, Miami, FL, for Defendant.

ORDER GRANTING REMAND

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the court upon Plaintiff's Motion to Remand Action to State Court (D.E.5). Plaintiff argues that defendant cannot remove the action based on its counterclaim and that even if the counter-claim provides a federal jurisdictional basis, the notice of removal is untimely. Plaintiff moves to remand the action, which motion defendant opposes. The Court has carefully considered the Motion, response, the pertinent portions of the record, and is otherwise fully advised in the premises. For the reasons that follow, the Motion to Remand is GRANTED.

BACKGROUND

Plaintiff served defendant with a state court complaint for eviction on December 4, 1996. Defendant filed a second amended answer with a counterclaim on February 20, 1997 and filed her notice of removal on March 17, 1997, 103 days after service of the complaint but less than 30 days after filing the second amended complaint with the counterclaim. Defendant seeks to remove this action based on 28 U.S.C. § 1443, as the counterclaim alleges that plaintiff, through its eviction action, is using the state court processes to discriminate against defendant on the basis of race, in violation of the Fair Housing Act of 1968, as amended, 42 U.S.C. § 3601, et seq.

DISCUSSION

Section 1443 of Title 28, United States Code, provides:

Any of the following civil actions ... commenced in a State court may be removed by the defendant to the district court of the United States for the district and the division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

28 U.S.C. § 1443 (1994). In Sofarelli v. Pinellas Co., 931 F.2d 718, 724 (11th Cir.1991), the defendant removed a state court action based on his counterclaim that plaintiffs' efforts to stop him from moving his house were racially motivated and violated his rights under, inter alia, the Fair Housing Act. The district court remanded the case. On appeal, the Eleventh Circuit reviewed the propriety of the order of remand pursuant to 28 U.S.C. § 1447(d) and held that the action was properly removed under § 1443.¹ See Sky Lake Gardens No. 3, Inc. v. Robinson, et al., No. 96-1412, slip op. (S.D.Fla. July 24, 1996) (Nesbitt, D.J.). Accordingly, defendant's removal, insofar as it pertains to this Court's subject matter jurisdiction, is proper.

Remaining for the Court is the determination whether defendant's notice of removal was timely under 28 U.S.C. § 1446(b), which provides, in pertinent part, that:

[t]he notice of removal of a civil action or proceeding shall 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, or within thirty 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.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable....

28 U.S.C. § 1446(b). The removal statute should be strictly construed against removal, in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). Where the propriety of removal is in question, the burden of showing removal is proper is on the removing party. Kirby v. OMI Corp., 655 F.Supp. 219, 220 (M.D.Fla.1987). The thirty day period is not jurisdictional, but is rather a strictly applied rule of procedure that may not be extended by the court. Liebig v. DeJoy, 814 F.Supp. 1074, 1076 (M.D.Fla.1993). Accordingly, if defendant's motion for removal is untimely, such a defect in removal renders the action subject to remand.

Plaintiff asserts that defendant may not restart the 30 day removal clock by filing a federal counterclaim after the initial 30 day period has run. However, the cases cited by plaintiff do not address whether the 30 day period may be commenced by an amended pleading filed by defendant, where the jurisdictional basis is federal question, and removal is based on 28 U.S.C. § 1443.² Moreover, they predate the Supreme Court case of Georgia v. Rachel, supra.

In support of its position that the filing of the counterclaim started the thirty day removal period running, defendant cites T & M Dental Lab, Inc. v. First Industrial Bank, 714 F.Supp. 798, 799 (E.D.La.1989) (case became removable when FDIC became party; motion for removal made 2 days later); Wilson v. General Motors Corp., 888 F.2d 779, 782 (11th Cir.1989) (case became removable when defendant received discovery admissions showing diversity existed; defendant's next day removal timely); FDIC v. S & I 85-1, Ltd., 22 F.3d 1070, 1074 (11th Cir.1994) (holding FDIC may remove action under 12 U.S.C. § 1819 regardless of its alignment as plaintiff or defendant; defendant's counterclaim triggered FDIC's right to remove); General Electric Capital Auto Lease, Inc. v. Mires, 788 F.Supp. 948 (E.D.Mich.1992) (case became removable upon court order consolidating two actions and granting one plaintiff right to file counterclaim).

The case before the Court is distinguishable from the above-cited cases. Defendant has not indicated that the facts on which it based its counterclaim were unavailable to defendant when it first received the initial complaint.³ Therefore, the case was removable upon defendant's receipt of the initial pleading. To the extent General Elec. Capital Auto Lease, Inc. v. Mires, 788 F.Supp. 948 (E.D.Mich.1992) holds differently, we decline to follow it for the reasons set forth herein.

The burden of proving timely removal is on the removing party, here, the defendant. If removal is untimely, the Court does not have jurisdiction. In the cases cited by defendant, some action by the opposing party triggered a renewed 30 day period, whether that action occurred in discovery or by filing an amended pleading. The statute indicates a similar intent by Congress to keep separate the trigger for removal from the power to remove. See 28 U.S.C. § 1446(b). Defendant here seeks to control both the "trigger," the statement of a federal claim which is removable under 28 U.S.C. § 1443, and the power to remove, by arguing that defendant's filing of a counterclaim starts the 30 day removal period for de...