Grant v. Rotolante, CASE NO. 6:13-cv-168-Orl-TBS
| Decision Date | 17 May 2013 |
| Docket Number | CASE NO. 6:13-cv-168-Orl-TBS |
| Parties | MARK JEFFERY GRANT, Plaintiff, v. DENISE JARDIN ROTOLANTE, Defendant. |
| Court | United States District Courts. 11th Circuit. United States District Court of Middle District of Florida |
The parties have consented to trial by the United States Magistrate Judge and the District Judge has referred this case to the Magistrate for all proceedings including trial. (Doc. 38). Now, the case comes before the Court without oral argument on the following pleadings and papers:
I.
Plaintiff Mark Jeffrey Grant is a managing director, head of the Structured Finance Department, and head of the Corporate Syndicate Department of Southwest Securities, Inc. ("SWS"). (Doc. 21-2 at 11). He is also a Financial Industry Regulatory Authority ("FINRA") registered representative per Securities and Exchange Commission ("SEC") Rule 17 C.F.R. § 240.15b7-1. (Id. at 18). Plaintiff and Defendant Denise Jardin Rotolante are residents of Brevard County, Florida, neighbors, and former friends. (Doc. 1 ¶ 1; Doc. 16-1 ¶¶ 2-3; Doc. 9 ¶¶ 2-3.) In June 2011, Defendant commenced a FINRA arbitration against Plaintiff and other respondents. (Doc. 16-1). On November 27, 2012, the arbitration panel entered an award for Defendant and against Plaintiff in the amount of $49,000, together with pre and post judgment interest, attorney's fees as provided in FLA. STAT. § 517.301, and Defendant's $375 non-refundable share of the FINRA filing fee. (Id. at 11).
On December 28, 2012, Defendant petitioned (the "Petition") the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida to confirm the arbitration award and enter judgment for Defendant (the "State Court Action"). (Doc.10). On January 15, 2013, Plaintiff filed a complaint in the Middle District of Florida, Tampa Division seeking to vacate the arbitration award pursuant to § 10(a)(4) of the Federal Arbitration Act (the "Federal Court Action"). (Doc. 1). Plaintiff alleges in the Federal Court Action that the arbitration award should be vacated because: (1) the arbitration panel did not have jurisdiction over him and therefore exceeded its power in issuing the arbitration award in violation of 9 U.S.C. § 10(a)(4) (Count I);1 (2) the arbitration award "violates . . . [Plaintiff's] right to free speech under the First Amendment of the United States Constitution" (Count II); and (3) the arbitration award is arbitrary and capricious, in manifest disregard of the law, and in excess of the arbitration panel's powers because the panel "disregarded the law that it lacked jurisdiction over" Plaintiff, and disregarded "other provisions of federal and state law" (Count III).2 (Doc. 1 at 2, 8-13). Plaintiff removed the State Court Action to the Middle District of Florida on January 24, 2013 on the grounds of federal question jurisdiction, and the Federal Court Action was transferred to the Orlando Division on January 29,2013. (Docs. 3, 4).
After removing the State Court Action, Plaintiff filed his answer and counterclaim to Defendant's Petition to confirm the arbitration award. (Doc. 9). Plaintiff's counterclaim seeks an order vacating the award on the grounds that Plaintiff was not subject to the arbitration panel's jurisdiction because Defendant was never his customer and imposing liability for his opinions violates his right to free speech under the First Amendment. (Id. at 4-7). Defendant answered Plaintiff's counterclaim and filed a motion to remand the State Court Action. (Docs. 16, 20.) Plaintiff has not filed a response in opposition to the motion to remand and the time to do so has passed. See M.D. FLA. R. 3.01(b) (). Defendant also filed a motion to dismiss the Federal Court Action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. 11).
Plaintiff has submitted a letter to the Court requesting permission to file a memorandum in response to Defendant's motion to dismiss the Federal Court Action. (Doc. 21). Attached to the letter are a Notice of Motion and Motion to Vacate Arbitration Award for Lack of Arbitrability (the "Motion") (Doc. 21-1), and a Memorandum in Opposition to [Defendant's] Motion to Dismiss and in Support of the Motion to Vacate Arbitration Award for Lack of Arbitrability (the "Memorandum") (Doc. 21-2). Plaintiff has provided the Court with the following papers in support of his Motion and Memorandum: (1) the affidavit of Gary Irwin, counsel for Plaintiff (Doc. 26); (2) Plaintiff's motion to dismiss filed before the FINRA arbitration panel (Doc. 27 at 2); (3) the arbitration award(Id. at 18); (4) excerpts from the transcript of the hearing before the arbitration panel (Doc. 28); (5) a motion in limine Plaintiff and SWS filed with the arbitration panel (Doc. 29 at 2); (6) a copy of the article What is a Broker-Dealer? (Doc. 29 at 28); and (7) FINRA Regulatory Notice 12-55 (Doc. 29-1 at 55). Defendant has served her response to Plaintiff's Motion. (Doc. 33.) The primary issue before the Court is whether it has jurisdiction over this dispute.
II.
A defendant may remove a case to federal court pursuant to 28 U.S.C. § 1446. Removal jurisdiction exists when the district court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a); Darden v. Ford Consumer Fin. Co., Inc., 200 F.3d 753, 755 (11th Cir. 2000). A district court has original jurisdiction over civil cases where the parties are of diverse citizenship and the amount in controversy "exceeds the sum or value of $75,000, exclusive of interest and costs" and over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. §§ 1331, 1332(a).
After the case is removed, the plaintiff may move at any time for remand to state court for lack of subject matter jurisdiction. 28 U.S.C. § 1447(c). The plaintiff may also move to remand by challenging "the propriety of the removal itself, whether that challenge be on the basis of a procedural defect or a lack of subject matter jurisdiction" within thirty days of removal. Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 n.64 (11th Cir. 2007) (emphasis in original); 28 U.S.C. § 1447(c). In either case, the party seeking to invoke federal jurisdiction bears the burden of proving that the case is properly before the court. Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir.2002) (citing Williams v. Best Buy Co., 269 F.3d 1316, 1319-20 (11th Cir. 2001)) ("A removing defendant bears the burden of proving proper federal jurisdiction"). All uncertainties concerning removal jurisdiction are to be resolved in favor of remand. Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994))
III.
Subject matter jurisdiction must be affirmatively shown in the record before considering the merits of any case. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005) (citing Steel Co. v. Citizens for a Better Evn't, 523 U.S. 83, 94 (1998)). Under Federal Rule of Civil Procedure 12(b)(1), a party may bring either a facial or factual challenge to a court's subject matter jurisdiction. See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (). In a facial challenge, the court assumes all of plaintiff's allegations are true and determines whether plaintiff has alleged a sufficient basis for subject matter jurisdiction. Id. at 1529. In a factual challenge, the court must determine if it has power to hear the case. Id. The Eleventh Circuit has explained that when it is confronted with a factual challenge, the court may consider "matters outside the pleadings, such as testimony and affidavits . . . ." Id. (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). When a factual attack also implicates an element of the cause of action, jurisdictional dismissals should be allowed "only in those cases where the federal claim is clearly immaterial or insubstantial." Id. (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981)).
IV.
Several pleadings and papers filed by Plaintiff in this action violate the Court's Local Rules. Plaintiff's letter requesting permission to file the Motion and Memorandum states that counsel prepared a first draft of two memorandums, one in opposition to ...
To continue reading
Request your trial