Harmony Homes, Inc. v. United States ex rel. Small Business Administration
Harmony Homes, Inc. v. United States ex rel. Small Business Administration
Opinion of the Court
ORDER ON PLAINTIFF’S MOTION FOR REMAND AND AWARD OF ATTORNEY’S FEES AND ON DEFENDANT’S MOTION TO DISMISS
This cause came before the Court on Plaintiffs Motion for Remand and Award of Attorney’s Fees (Docket Nos. 9-11) and Defendant’s Motion to Dismiss (Docket No. 13). Upon review of the motions and supporting memoranda, and the responsive memoranda filed by the parties, this Court finds that both motions must be denied.
I. FACTS
Plaintiff, HARMONY HOMES, INC., filed a Complaint to Foreclose Mortgage in the Circuit Court of Florida, Thirteenth Circuit, and served the complaint to the United States Attorney’s Office in Tampa on June 24, 1994. After the Defendant, UNITED STATES OF AMERICA, answered the complaint, the Plaintiff filed an Amended Complaint on or about August 19, 1994. Neither the initial complaint nor the amended complaint alleged a jurisdictional basis for the suit. The Defendant answered Plaintiffs amended complaint, asserting the affirmative defense of sovereign immunity. The Defendant then moved to dismiss the case on the basis of lack of subject matter jurisdiction. On January 9, 1995, the Circuit Court entered its order dismissing the case. However, upon the Plaintiffs Motion for Rehearing, the Circuit Court rescinded its order of dismissal and allowed the Plaintiff to file another amended complaint. The Plaintiff served its Second Amended Complaint on the United States Attorney’s office on March 20, 1995. The second amended complaint alleged that 15 U.S.C. § 634(b)(1) provided the state court with jurisdiction over the suit. On March 30, 1995, the Defendant filed a Notice of Removal in this Court.
II. Plaintiffs Motion for Remand and Award of Attorney’s Fees
Title 28 U.S.C. § 1446(b) provides that a “notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through ser
The Plaintiff argues that the Defendant had thirty (30) days from receipt of the Initial Complaint on June 24, 1994 in which to file its Notice of Removal to the federal district court. The Defendant filed its Notice of Removal on March 30, 1995. The Plaintiff seeks to remand this case to state court, alleging that the Notice of Removal was not filed in a timely manner. The Defendant counters that its Notice of Removal was timely because a basis for removal did not become apparent until the Plaintiff served its second amended complaint on March 20, 1995.
The Plaintiffs Initial Complaint and first Amended Complaint both failed to allege a jurisdictional basis for the suit. Nevertheless, the Plaintiff posits that a fair reading of the initial complaint adequately put the Defendant on notice that the case could be removed to federal court. The case which the Plaintiff cites to support its position is distinguishable from the instant case. In Lee v. Altamil Corp., 457 F.Supp. 979 (M.D.Fla. 1978), the parties to the action were clearly of diverse citizenship. Although the complaint failed to allege damages in excess of $10,000.00
This case, however, does not involve federal diversity jurisdiction. Therefore, federal question jurisdiction is required.
The Plaintiff served its second amended complaint on March 20, 1995. A basis for federal question jurisdiction, 15 U.S.C. § 634(b)(1), did appear on the face of this pleading. (Pl.’s Second Am.Compl. at 1.) The Defendant filed its Notice of Removal ten (10) days later on March 30, 1995. Since a proper basis for removing this suit did not become apparent until the Plaintiff served its second amended complaint, this Court finds that the Defendant filed a timely Notice of Removal, pursuant to the second paragraph of 28 U.S.C. § 1446(b). Accordingly, the Plaintiff is not entitled to an award of attorney’s fees.
III. Defendant’s Motion to Dismiss
The Defendant seeks dismissal of this case for failure to state a claim, on the ground that the Plaintiff failed to bring the action within the time prescribed by the applicable statute of limitations.
A court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In addition, when considering a motion to dismiss, a court must consider the plaintiffs allegations as true. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). When reviewing a Rule 12(b)(6) motion to dismiss on statute of limitations grounds, as in this case, the court must determine whether the date alleged in the statement of a claim indicates that the action was not brought within the applicable statute of limitations. Davis v. Grusemeyer, 996 F.2d 617, 623 (3rd Cir. 1993). A district court may grant such a motion when the complaint’s “ ‘... own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint.’” Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993) (quoting Quitter v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984), cert. denied 476 U.S. 1124, 106 S.Ct. 1992, 1993, 90 L.Ed.2d 673 (1986)).
After reviewing the Plaintiffs complaint and amended complaints, there is no indication on the face of any of these pleadings that the statute of limitations bars this action. Accepting the Plaintiffs allegations as true for purposes of ruling on this motion, this Court finds that the Plaintiff became the holder of the mortgages at issue on November 21, 1980. Thus the Court must further find that the Plaintiff held the mortgages on June 24, 1994, when the suit was filed.
The Court notes that in its Motion to Dismiss, the Defendant refers to facts and exhibits not contained within the complaint and amended complaints. When ruling on a motion to dismiss, “Consideration of matters beyond the four corners of the complaint is improper.” City of Ft. Lauderdale v. Ross, Saarinen, Bolton cf. Wilder, Inc., 815 F.Supp. 444, 446 (S.D.Fla. 1992) (citing Milburn v. United States, 734 F.2d 762 (11th Cir. 1984)). Accordingly, it is,
ORDERED that Plaintiffs Motion for Remand and Award of Attorney’s Fees (Docket Nos. 9-11) and Defendant’s Motion to Dismiss (Docket No. 13) be DENIED. The Defendant shall have twenty (20) days from the date of this order to file an answer to the second amended complaint.
DONE and ORDERED.
. The amount in controversy required to sustain federal diversity jurisdiction is now $50,000.00. 28 U.S.C. § 1332.
. 28 U.S.C. § 1331.
.Under Florida law, foreclosure actions must be brought within five (5) years from the date of default, or, if the contract contains no acceleration clause in the event of default, from the maturity date of the final installment. Fla.Stat.
Reference
- Full Case Name
- HARMONY HOMES, INC., a Florida corporation v. UNITED STATES of America, on Behalf of its agency, SMALL BUSINESS ADMINISTRATION
- Cited By
- 1 case
- Status
- Published