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Mr. Mouse contends, that the District court lacked jurisdiction over the original complaint,1 According to the defendants Removal to District Court [R1], District Courts jurisdiction was invoked pursuant to 28 U.S.C. 1331, 1367(a). Defendants Motion for Summary Judgment [R55] was filed on February 10, 2012, the Court Granted Defendants Motion for Summary Judgment on August 30, 2012 [R61] 28 U.S.C. 1291, the Clerks judgment was filed on August 31, 2012 [R62]. On September 28, 2012, Mr. Mouse timely filed Notice of Appeal [R63], in accordance with Fed.R.App.P.4(a)(1)(A).

II. 1.


Whether the District Court erred in Denying [R13] Mr. Mouses Motion to

Remand[R9], when Removal had been untimely, there were no federal causes of action, no federal questions, the causes of action were not dependent upon federal law, and the case was requesting documents as relief, no money ,thereby federal Court lacked jurisdiction. Even if that was not error, it was certainly error for the case not to be remanded on the grounds that Removal was not attempted, until the action had been in the Court for ninety-five (95) days, and thereby removal was

Which in reality, was a request for documentation proving the identity of the holder of the Promissory Note and Security Deed, as Mr. Mouse had wanted to negotiate a payoff, and have the debt satisfied/cancelled at that same time [R3] and attempted to have the case remanded.

untimely. 2. Whether the Magistrate Judge erred in reviewing and reversing Superior

Courts Orders, wherein manifest injustice did not exist.. 3. Whether the District Court erred in its ruling that defendant only had to

produce one or two documents, out of twenty-six (26) documents that Superior Court Ordered, to be produced after being shown that BOOhad acted in bad faith. 4. Whether the District Court erred by not enforcing its Order [R29] that

Respondent depose Mr. Mouse within 30 days, even if that was not error, was it err for the court to grant motion to compel [R68-19] when defendant had no intention of re-deposing Mr. Mouse, which was the reason for Motion to Compel the issue that they filed the motion to compel for? 5. Whether Denial of Mr. Mouses Request for De Novo review of the

Magistrate Judges ruling of September 20, 2010 [R31, R32] was error; and even assuming that the Denial was not error, was it error for the Magistrate Judge to be the one ruling on the request of her ruling for de novo review by the District Court Judge, herself [R34], rather than the District Court Judge to make such ruling? 6. Whether District Court erred in Denying [R45] Mr. Mouses Petition for

Preliminary Injunction/Temporary Restraining Order [R42], leaving the property open to be foreclosed upon, and causing the case to become moot. 7. District Court erred, when, after Mr. Mouse filed a new Superior Court

action for wrongful foreclosure, and the case removed to District Court, in front of the same Judge as the case at bar, and it having been shown, that neither Mr. Mouse, nor his Legal Counsel were served Motion to Dismiss/summary judgment, just as in the case at bar, and the judge allowed the ruling to stand, then using that ruling to moot this first filed civil action. 8. Whether the District Court erred when in its ruling, the Judge advised BOA,

[R54] that if BOOwere to file the same thing, but as a Summary Judgment, that it would be Granted. 9. Whether the District Court violated Mr Mouses Right to Due Process of

Law, by Denying [61] Mr. Mouses emergency Motion for an extension to respond to summary judgment[R56] showing that neither he, nor his Legal Counsel had been served the Motion for Summary judgment [R55], and requesting that he be allowed to participate. 10. Whether the District Court erred in Granting defendants summary

judgment, without considering the whole record [R61]. III. A. STATEMENT OF THE CASE Nature of the Case, Course of Proceedings, and Disposition Below

Mr. Mouse, whose loan was not in default, and who, had been both a real estate agent, and a real estate broker, had tried for many months to get documentation from Bank Of America, N.A. (BOA) so that he could negotiate a

payoff on his home loan. BOOrefused any and all documentation, which led Mr. Mouse to believe that his suspicions of having been paying an entity not entitled to the payments had been confirmed. Mr. Mouse quit making the payments and filed a civil action in Superior Court of Fayette County (SCFC) in order to obtain the documents that he required. BOOhad Johnson & Freedman lawfirm send Notice of Foreclosure letters. The Superior Court scheduled a hearing on the documents issue for October 23, 2009. BOOfailed to appear for hearing, the Judge found BOOhad shown bad faith, while Mr. Mouses many attempts to resolve the matter outside of the court, for over a year, in good faith. Superior Court Granted a TRO, and Granted the Production of all documents Mr. Mouse sought [R52-4,5,6], within ten (10) days. With actual knowledge that they were in contempt of the Order, and had defaulted on their responsive pleading, in a case with no federal causes of action, no federal questions, BOOremoved the case to US District Court on November 23, 2009, more than ninety-five days after the case had been filed. A year or more into the case, Magistrate Judge Denied a Petition for TRO when BOOmade it clear that they were pursuing foreclosure. After foreclosing, BOOwithdrew their Counterclaim and filed Motion for Judgment on the Pleadings. The District Court Denied the Motion [R54] and in the Ruling, told BOOthat should they file the same thing in the form of Summary Judgment that he would

grant the motion [R54-2].

BOOhas incorrectly, consistently insisted that Mr.

Mouse did not dispute the authenticity of the Deed, Note and Assignments; it is common knowledge that Mr. Mouse, more than once, had entered an Affidavit of Fraud/Forgery into proceedings concerning those documents [R52-2 thru 4; R52-9, 10]; [R26-Ex3; R26-Ex4; R26-Ex5]. BOOfiled for Summary Judgment [R55], but did not comply with the Local Rules on Notice to Respond to Summary Judgment. In fact Mr. Mouse at that time, was represented by Legal Counsel, and neither Mr. Mouse, nor his Legal Counsel were alerted that a Summary Judgment had been filed. Mr. Mouse and his Legal Counsel learned of the Motion when Legal Counsel was later notified electronically, that the Motion had been submitted to the Judge. Mr. Mouse filed an Emergency Motion [R56], to which Legal Counsel had attached an Affidavit [R55-#1] Requesting that he be allowed to participate, and file a late response. The District Court Denied the Motion, in the final ruling Granting BOOSummary Judgment against Mr. Mouse [R61]. IV. (1) STATEMENT OF THE FACTS The Complaint Mr. Mouse Filed In Superior Court

Mr. Mouse, had sent Qualified Written Request Letters to BOOon 04/04/09, 05/06/09, 06/22/09, and 07/25/09. Due to BOAs refusal to provide Mr. Mouse any information in his quest to validate the debt. On August 21, 2009, Mr. Mouse

filed a civil action in Fayette County Superior Court (SCFC), solely to force BOOto produce documents that would validate the debt. Mr. Mouse was not seeking a money judgment. Upon validation, Mr. Mouse planned to satisfy the remainder of the debt, and have cancelled, the Promissory Note and Security Deed [R52-5,6]. BOAs response was to send Mr. Mouse Notice of Foreclosure letters, and to schedule a Sale Under Power for the first Tuesday in November. October 7, 2009 the Court scheduled a hearing on the documents issue, scheduled for October 23, 2009. Mr. Mouse was Ordered to have Notice of hearing formally served upon BOA, to which, Mr. Mouse complied. BOOfailed to appear. The Court found BOOhad acted in bad faith, and Granted both the TRO [R2] and Granted Request for Production of documents [R3]. The Court Ordered that BOOhad 10 days to produce the documents.

Instead, of providing the documents, and while Plaintiff was in the middle of drafting Motions for Contempt of Court and for Default, BOOremoved the action, after the case being in Superior Court for ninety-five (95) days, to United States District Court (USDC) [R1]. BOOon November 25, 2009 removed a case that had been filed on August 21, 2009, ninety-five (95) days prior to their Notice of Removal. Mr. Mouse, knew nothing about federal court, but believed that the Court would adhere to their

own rules on Removals and lack of jurisdiction, and that the court would sua sponte, Remand the case back to Superior court. There were no federal causes [R9-3], no federal relief sought, and there were not federal constitutional violations. BOOwas in contempt of two (2) Court Orders [R2, R3] had failed to file responsive pleadings for three months. The thirty (30) days in which the case could have been removed, had turned into ninety-five (95) days. When it became obvious that the Court was going to ignore their lack of jurisdiction, Mr. Mouse filed Motion to Remand [R9] showing that BOOwas looking to get around two contempt charges, a default judgment for failing to file responsive pleading, and that BOOintended to use USDC as an appellate Court [R9-2,3], the court clearly, lacked jurisdiction [R9-3,4,5]. Mr. Mouse also

included in Motion to Remand, federalism/comity/abstention [R9-7,8], and Rooker-Feldman [R9-8]. In his Reply Brief, Mr. Mouse clearly showed that he had merely stated BOOhad violated FDCPA and/or RESPA, neither were used as a cause of action, sought no relief for said violations, Mr. Mouse further showed that the complaint did not arise under federal law [R12-4]. The Magistrate Judge sided with BOOand held that mentioning FDCPA and RESPA made them claims and Plaintiff, as the master of his pleadings should not have included those words [R13-7]; and Denied Mr. Mouses Motion to Remand on May 03, 2010 [R13].

Mr. Mouse felt so strongly about the issue, he filed an Objection and Motion for Reconsideration of the Order [R17]. In the Motion, Mr. Mouse showed that Notice of Removal was filed ninety-five (95) days after the civil action had been filed into superior court.[R17-4]; that BOOwas in default [R17-6]; that BOOwas contempt of two court orders, and had failed to remove all documents [R13-8]. (2) Magistrate Judge Refused to Address the Date The Case Was Filed

Every time Mr. Mouse filed anything into the Court he brought up that SCFC case had been filed on August 21, 2009 [R9-1; R12-5; R17-1; R36-1445; R24(Brf)-22; R25(Brf)-4; R52-3,4 & Ex.1]. BOOcontinually claimed that it had been filed the same day as the hearing, October 23, 2009 [R52-4]; that way BOOcould claim that the Temporary Restraining Order (TRO) had been granted ex parte. Mr. Mouse even filed into the USDC record, the Docket Report from SCFC [R52-Ex2], and the Magistrate Judge still refused to address the true date the case was filed [R52-5]. Pretending that the case had not been filed until the hearing of October 23, 2009, allowed the Magistrate Judge keep from having to address that BOOwas in Default, or that they had not timely removed the case to USDC. (3)

The Superior Courts Orders

R24(Brf)-2 = R = Record (Docket Report Number of Document); Document 24 is Motion for Contempt, (Brf) is the accompanying Brief (The docket report reads Motion for Contempt with Brief in Support by Gaellen Mouse) -2 = page 2

Both the Magistrate, and District Court Judges ignored the Superior Courts Orders Granting TRO [R2], and Granting the Production of Documents [R3]. Mr. Mouse had attempted to get BOOcharged with being in contempt of those Orders, and was Denied [R34]. BOOhad knowingly, willingly, and wantonly refused to Obey the two (2) Court Orders. In fact, the Magistrate Judge limited the documents that Mr. Mouse could request on Discovery, which included the documents that BOOhad been ordered to produce [R68-12-17]. The Magistrate Judge effectively overturned the Superior Courts Order, and further violated Mr. Mouses Rights. The SCFC had seen first-hand how BOOhad acted in bad faith and saw fit to award Mr. Mouses acts of good faith, and Granted what he sought. In essence the Magistrate Judges ruling was nothing more than BOOappealing the ruling to USDC, with BOOwinning the appeal. (4) Magistrate Judge Ruled on the Relevancy of the Documents,

When She Clearly Did Not Understand What the Documents Were At a Motion to Compel hearing, brought by BOOagainst Mr. Mouse for their unhappiness at his answers in a deposition, Mr. Mouse, after being ridiculed by the Magistrate Judge, was going through the list of documents that he had requested, and SCFC had Ordered BOOto produce, [R68-12-21 thru 25],3 which were the same documents that Mr. Mouse had tried to get before he filed suit; the Magistrate

[R68-12-21 thru 25] = R68 = Transcript from August 31, 2010 for Motion to Compel hearing); -12 = page 12; 21 thru 25 = lines 21 thru line 25.

Judge showed that she had no idea what the documents were, but ruled them nonsensical [R68-13-5], irrelevant [R68-13-18; R68-13-23]; held that doesnt make any sense so I am not ordering that [R68-14-5; R68-14-11]; Denied R6815-4]; [R68-16-8; R68-16-15; R68-16-19]; Okay. That is denied [R68-15-11; R68-15-25] Denied. Doesnt make any sense[R68-15-18]. In essence, the Magistrate Judge Reviewed, Reversed, and Overruled an Order from SCFC, when such Order was given because BOOhad acted in bad faith, and had refused to appear for a duly Noticed Hearing. The documents were also documents that Mr. Mouse had a right to request. (5) Magistrate Judge Ordered BOOto Conduct Second Deposition

The Magistrate Judge, at the Motion to Compel hearing, Ordered that BOOset up a second deposition for Mr. Mouse to attend, and to give him at least two weeks notice4 [R68-19-10 thru 11], and, at the suggestion of BOOattorney [R68-17-25 thru 1-18-2; R68-18-10 thru 11], they were Ordered to hold the deposition within thirty (30) days [R68-19-3 thru 4]. In truth and fact, BOOnever scheduled that second deposition, and thereby failed to Obey another Court Order. Apparently BOOis in the habit of ignoring

When BOOhad sent Notice of Deposition to Mr. Mouse the first time, they Noticed the Deposition for four (4) days after Mr. Mouse received the Notice. Mr. Mouse contacted BOOand requested an extension so that he could locate Legal Counsel to attend the deposition with him. BOOgranted a one day extension knowing that Mr. Mouse would not be able to find Counsel to attend on such short Notice.

Courts Orders, even in so far as ignoring them when it is for what they requested.


Mr. Mouses Objection to the Order, and Motion for De Novo Review by the District Court Judge

Mr. Mouse filed Objection to the Magistrate Judges Order and Motion for de novo review by the District Judge on September 20, 2010 [R31, R32]; when District Court failed to rule on the request, the Magistrate Judge ruled on the matter, herself on December 20, 2010 [R34]. Shortly afterward, the District Court did make a ruling, on January 03, 2011, District Court also Denied the Motion for De Novo Review [R35]. Mr. Mouse was of the understanding and belief that since the Magistrate Judge was making all the rulings, that a party could properly object and request a de novo review, and the Request to Review the Ruling, would be Granted. (7) Denial of Preliminary Injunction/Temporary Restraining Order

The denial of any protection from foreclosure [R45], during the pendency of the case, resulted in a Sale Under Power, and effectively caused Mr. Mouses Complaint to become moot. Having been in Court since August 2009, and to cut the case short when it was so close to a trial, together with the fact, that Mr. Mouse had retained legal counsel, prevented Mr. Mouse the chance to have his day in Court. Mr. Mouse had filed an Affidavit of Forgery and Fraud concerning the

documents BOOwas using, and the last assignment, as well as the Limited Power of Attorney, were questionable at best. (8) The Court Denied Judgment on the Pleadings, But in the Same Order, Advised That the Court Would Grant Summary Judgment BOOhad filed Motion for Judgment on the Pleadings, seeking to end the case; after all, the non-judicial foreclosure and Sale Under Power had taken place, resulting in Mr. Mouses Verified Complaint becoming moot. When District Court Ruled on the Motion for Judgment on the Pleadings, in the Order, the Court stated, Accordingly...Denied, but the denial is without prejudice to their bringing essentially the same motion as a motion for summary judgment. It would significantly assist this Court if Defendant were to include with its motion, along with the items required by Local Rule 56.1, an affidavit...the deadline for filing a summary judgment motion is EXTENDED to February 10, 2012. [R54-1,2]. BOOhad representation, Mr. Mouse had not realized that the Court was allowed to act as lead counsel for defendants in a civil action, advising them what to file to end a case. Mr. Mouse was not afforded the same advantage, not even when he was proceeding in propria persona. (9) BOODid Not Follow the Local Rules on Summary Judgment

Neither Mr. Mouse, nor his Legal Counsel were notified that Summary Judgment had been filed. On March 14, 2012, through the CM/ECF system, legal


counsel received Submission of [55] MOTION for Summary Judgment, submitted to District Judge Willis B. Hunt; that was the first information that Mr. Mouse or his legal counsel obtained, showing that Motion for Summary Judgment had been filed [R56-2,3]. BOOattorneys were also supposed to mail to Mr. Mouses Legal Counsel, a Notice to Respond to Summary Judgment Motion form, which the failure to send, has gone undisputed. The Notice to Respond to Summary Judgment Motion form was never mailed to Mr. Mouse nor to his legal counsel. BOOhad ignored their responsibility, and purposefully saw that Mr. Mouse did not receive the Notice. Mr. Mouses Legal Counsel filed with the Emergency Motion and Affidavit supporting the fact that neither he, nor his client had any idea, and was not notified that Summary Judgment had been filed [R56-4]. Mr. Mouse filed Emergency

Motion for Extension of Time to Respond [R56] which the District Court Denied in the Final Ruling Granting BOOSummary Judgment against Mr. Mouse. (10) Standard of Review On Summary Judgment is De Novo V. SUMMARY OF THE ARGUMENT

The case should have been sua sponte Remanded to Superior court, for Removal of a non-removable action, untimely removal, and lack of personal and subject matter jurisdiction. The Court refused to remand the action, although there

were no federal questions, the case did not arise from federal law, or treatise, the federal court did not have original jurisdiction, and the monetary relief did not meet the $75,000.00 requirements of federal court. District Court Denied Mr. Mouses Petition for TRO/Injunction, even just for while the case was pending. When the TRO was denied, there was an

immediate Sale Under Power. Shortly thereafter, BOOfiled for Judgment on the Pleadings, which the Court denied, and advised that they should refile, but to file for Summary Judgment, and that would give the judge whatever it was that he needed, to be able to grant their motion. When BOOfiled for Summary Judgment, it was shown that neither Mr. Mouse, nor his Legal Counsel had been served with the Summary Judgment, Legal Counsel even filed an Affidavit in support of the motion. Mr. Mouse filed an Emergency Request for Extension, so that Mr. Mouse could participate in Summary Judgment. District Court violated Mr. Mouses Right to Due Process of Law, and Right to be heard, when his Motion was Denied, and the Court Granted BOOSummary Judgment. VI. A. ARGUMENT AND CITATION OF AUTHORITY USDC Lacked Jurisdiction to Entertain the Case at Bar

The case originally filed on August 21, 2009 in SCFC, had no federal causes of action, requested no form of federal relief, and none of the causes within the

complaint arose from federal law, federal treaties, or under the federal constitution. Federal Court did not have original jurisdiction over such a case. The case was merely seeking documentation to prove or disprove the true identity of the secured creditor so that Mr. Mouse could negotiate a payoff, with the proper entity. There were no federal claims in the original complaint. Circuits September 07, 2011 Ruling in Madzimoyo held: In other words, to be removable on federal-question jurisdiction grounds, the case must arise under federal law. See Merrell Dow Pharm, Inc. v. Thompson, 478 U.S. 804, 807-08 (1986). A federal question is presented by the complaint when the suit relies on a federal cause of action or where the vindication of a right under state law necessarily turned on some construction of federal law. See Merrell Dow, 478 U.S. at 808. i. Removal to Avoid Two (2) Contempts and a Default The Eleventh

BOOhad to Remove the case, in order to get around being in contempt of two (2) Court Orders, and having failed to file responsive pleadings within thirty (30) days, they were in default. Although abstention is the exception and not the rule, [f]ederal courts should abstain from exercising their jurisdiction if doing so would disregard the comity between the States and the National Government. Wexler v. Lepore, 385 F.3d 1336, 1339 (11th Cir. 2004) (citation omitted). Abstention had been triggered because of undue interference with state proceedings and because of the


involvement of certain orders that are uniquely in furtherance of the state courts ability to perform their judicial functions The Supreme Court has recognized that a state's interest in its contempt process is of sufficient importance to warrant the application of Younger and that a federal court's interference with this process constitutes undue interference with a state's legitimate activities. Juidice v. Vail, 430 U.S. 327, 335-36, 97 S.Ct. 1211, 1217-18, 51 L.Ed.2d 376 (1977). These defendants essentially sought to overturn Johnnie L. Caldwell, Jr.s orders. This would have required the district court to direct Judge Johnnie L. Caldwell, Jr. to reverse his prior rulings, and any relief granted in this case would unduly interfere with state court proceedings. See id. at 335-36, 97 S.Ct. at 1217-18. This interference would relate to one of Judge Joh nnie L. Caldwell, Jr.s judicial functions, whether or not to Grant TRO and whether or not to Grant the Order to Produce Documents. Should this court interfere with the

judicial functions of a state court, comity that would warrant the district court's abstention as to any pending matters. See Wexler, 385 F.3d at 1339, 1341. Because there was an order granting an injunction by the state court, the defendants were seeking a way around that order. When a court issues an injunction, it automatically retains jurisdiction to enforce it. Wesch v Folsom, 6 F.3d at 1470 (11th Cir. 1993). The case had to be remanded. Such abstention, the Supreme Court recognized in Younger v. Harris, 401

U.S. at 53-54 is required by [o]ur Federalism[s] notion of comity, that is, a proper respect for state functions and the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. Id. ii. Superior Court Had Original Exclusive Jurisdiction

The Rooker-Feldman Doctrine, In Rooker, The Supreme Court determined that the federal district courts lacked jurisdiction to entertain a proceeding to reverse or modify a state court judgment, even if said judgment was wrong. Rooker, 263 U.S. at 416. In Feldman, The Supreme Court concluded that a federal district court has no authority to review final judgments of a state court in judicial proceedings. Feldman, 460 U.S. at 482. Both the Rooker and the Feldman rulings have been reiterated in later rulings. The Supreme Court has given us direct instruction explaining the profound limitation to our powers in the sensitive relationship between courts of separate sovereigns. In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983), the Court made it clear that federal district courts and federal courts of appeals lack jurisdiction to review or reverse a state court judgment on the merits. Any such federal review must be addressed directly to the United States Supreme Court from the state's highest court pursuant to 28 U.S.C. 1257. See Atlantic Coast Line

R.R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 296, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); Facio v. Jones, 929 F.2d 541, 543 (10th Cir.1991) (district court had no jurisdictional power to set aside state default judgment); In re Marler, 58 B.R. 481, 483-84 (D.Kan. 1986). In re James 940 F.2d 46 (1991)(3rd. Cir.). Moreover, Superior Court has exclusive original jurisdiction over matters relating to land and the title thereto. O.C.G.A. 44-2-60: For the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered as prescribed by this article, the superior court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon. 5 The current version of 1447 holds that [i]f at any time before final

The words shall, will, or must are language of an unmistakably mandatory character, requiring that certain procedures "shall," "will," or "must" be employed Hewitt v. Helms, 459 US 460 - Supreme Court 1983; ("a State creates a protected liberty interest by placing substantive limitations on official discretion"); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983) ("the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest"). "To create a constitutionally protected liberty interest, a state must employ `language of an unmistakably mandatory character, requiring that certain procedures "shall," "will," or "must" be employed ... '" Russ v. Young, 895 F.2d 1149, 1153 (7th Cir.1990) (quoting Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871). Protected due process liberty interests can be created, however, when a state "plac[es] substantive limitations on official discretion," Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983).

judgment it appears that the district court lacks subject matter jurisdiction, remand would be required, see Powerex Corp., 127 S.Ct. at 2415-16 (emphasis added)(quoting Judicial Improvements and Access to Justice Act of 1988, Title X, 1016(c)(1), 102 Stat. 4642, 4670 (codified at 28 U.S.C. 1447(c)(2006)). As the Court further pointed out, the same section of the public law t hat amended 1447(c) to include the phrase subject matter jurisdiction also created the current version of 28 U.S.C. 1447(e).6 Section 1447(e) even provides If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to state court.( 28 U.S.C. 1447(e) (emphasis added)) Accordingly, 1447(e) unambiguously

demonstrates that a case can be properly removed and yet suffer from a failing in subject matter jurisdiction that requires remand.7 iii. Defendants Had Failed to Meet Their Burden On Removal

As the Eleventh Circuit Court of Appeals has clarified the scope of federal question jurisdiction: The fact that a court must apply federal law to a plaintiffs claims or construe federal law to determine whether the plaintiff is entitled to relief will not confer federal subject matter jurisdiction the implicated federal issue must be substantial.... [I]t is now well
6 7

Id. at 2417 (citing 1016(c), 102 Stat. At 4670.) Powerex Corp., 127 S.Ct. @ 2417.

established that federal jurisdiction is not created by the mere fact that proof of violation of a federal statute is an element of a plaintiff's state-law cause of action. Dunlap, 381 F.3d at 12911292 (emphasis in original) (citations omitted). Therefore, whether a federal defense may arise is far removed from a situation where compliance with federal law is an essential element of the plaintiff's claims. Dunlap, 381 F.3d at 1292 (emphasis added). The U.S. Supreme Court held in its affirming the 6th Circuit reversal, in Franchise Tax Board v. Construction Laborers Vacation Trust , 463 U. S. 1 (1983),[2] and noting that the FDCA does not create or imply *807 a private right of action for individuals injured as a result of violations of the Act, it explained: "Federal question jurisdiction would, thus, exist only if plaintiffs' right to relief depended necessarily on a substantial question of federal law. Plaintiffs' causes of action referred to the FDCA merely as one available criterion for determining whether Merrell Dow was negligent. Because the jury could find negligence on the part of Merrell Dow without finding a violation of the FDCA, the plaintiffs' causes of action did not depend necessarily upon a question of federal law. Consequently, the causes of action did not arise under federal law and, therefore, were improperly removed to federal court." 766 F. 2d, at 1006. We granted certiorari, 474 U. S. 1004 (1985), and we now affirm. Further, the removing defendants have the burden of proving federal jurisdiction. Kirkland v. Midland Mortgage Co., 243 F.3d 1277, @1281 *n.5 (11th Cir. 2001). A conclusory allegation in the notice of removal that the

jurisdictional amount is satisfied, is insufficient to meet the defendant's burden.


See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335-36 (5th Cir.1995); Gaus v. Miles, 980 F.2d 564, 567 (9th Cir.1992); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir.1994) (concluding that removing defendant did not meet burden of proving amount in controversy where it offered nothing more than conclusory allegations); Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 255 (5th Cir.1961) (stating that removing defendant must make affirmative showing ... of all the requisite factors of diversity jurisdiction). BOOfailed to meet the burden. B. Ignoring the Date Superior Court Action Had Been Filed

District Courts ignoring the date the case in superior Court had actually been filed, aided the Court in Denying Remand. Had the Court admitted that the case had been filed August 21, 2009, rather than October 23, 2009, the Removal on November 25, 2009 would have been untimely, and thereby not removable. Plaintiff asserts that the case must be Remanded pursuant to 1447(c), due to defective removal. U.S.C. 28 1447(c) implicitly recognizes two bases upon which a district court may, and in one case must order a remand: when there is (1) a lack of subject matter jurisdiction or (2) a defect other than a lack of subject matter jurisdiction. Black's Law Dictionary defines "defect" as: "[t]he want or absence of some legal requisite; deficiency; imperfection; insufficiency." Black's Law Dictionary 418 (6th Ed.

1990). Similarly, Webster's defines it as: "[w]ant or absence of something necessary for completeness or perfection; deficiency." Webster's New International Dictionary of the English Language 686 (2nd Ed.1953). C. District Court Ignored and Overturned Rulings of Superior Court

The Supreme Court repeatedly has recognized that the States have important interests in administering certain aspects of their judicial systems. Pennzoil, 481 U.S. at 12-13, 107 S.Ct. at 1526-27. In Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), the Court held that a federal court should have abstained from adjudicating a challenge to a state's contempt process. The Court held that [a] State's interest in the contempt process, through which it vindicates the regular operation of its judicial system, ... is surely an important interest. Id. at 335, 97 S.Ct. at 1217. The Court reasoned: Contempt in these cases, serves, of course, to vindicate and preserve the private interests of competing litigants, but its purpose is by no means spent upon purely private concerns. It stands in aid of the authority of the judicial system, so that its orders and judgments are not rendered nugatory. Id. at 336 n. 12, 97 S.Ct. at 1217 n. 12 (citations omitted). The inherent powers of federal courts are those which "are necessary to the exercise of all others." United States v. Hudson, 7 Cranch 32, 34 (1812). The most prominent of these is the contempt sanction, which a judge must have and

exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court. . . . Cooke v. United States, 267 U. S. 517, 539 (1925); see 4 W. Blackstone, Commentaries @282-285. The Courts have acknowledged the "inherent power" to assess attorneys fees for the willful disobedience of a court order . . . as part of the fine to be levied on the defendant[,] Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 426428 (1923), Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 718; or when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . . F. D. Rich Co. [v. United States ex rel. Industrial Lumber Co.], 417 U. S. [116], at 129 [(1974)] (citing Vaughan v. Atkinson, 369 U. S. 527 (1962))." Id., at 258-259. [B]ad faith' may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation. Hall v. Cole, 412 U. S. 1, 15 (1973). See Browning Debenture Holders' Comm. v. DASA Corp., 560 F. 2d 1078, 1088 (CA2 1977). USDC and the Magistrate Judge repeatedly denied Mr. Mouse Due Process of Law. The Magistrate Judge outright said that she did not have to honor the Superior Courts Orders [R34-3, last ]. Even though Superior court had ordered BOOto produce certain documents that Mr. Mouse was seeking, the Magistrate Judge admitted that she addressed each document request individually, and I

ordered Defendant to produce a copy of Plaintiffs promissory note if available, and a copy of Plaintiffs payment history...I also denied...any other documents requested in the hearing and not specified in my Order. [R34-3]. The Magistrate Judge went on to state that she had the right to grant any relief she deems appropriate, including reconsidering or reversing state court rulings... [R34-3]. Even the Magistrate Judge recognized that BOA, had in fact, sought appellate review in federal court, the Magistrate Judge was glad to give them what they wanted. This Order is one of the only ones that the Judge

acknowledged that the case had been filed on August 21, 2009 [R34-1], and yet she still ignored that Removal had not been timely. The only injustice was her rulings. The fact remains that in Georgia it is the Borrowers responsibility to ensure that the proper party is paid, or face having to pay for the property multiple times. BOOadmitted that they did not file the Assignment until years later. Although recording the assignment will be constructive notice to third persons with regard to the property securing the debt, it is not notice with respect to the debt itself, which is intangible property, Groover v. Peters, 231 Ga. 531, 202 S.E.2d 413 (1973). Payment after assignment. In paying the secured indebtedness the burden rests on the debtor to determine whether the person to whom he pays is the holder of the instrument or his authorized agent. [T]he borrower must be as careful in repaying the debt as

the lender presumptively was in making the loan. If the note and deed have been assigned, the burden rests on the borrower to determine that fact and pay only the party entitled. Groover v. Peters, 231 Ga. 531, 202 S.E.2d 413 (1973). Daniel F. Hinkel

Pindars Georgia Real Estate Law and Procedure (6th Ed. 2004) Vol. 2, 21 Security Deeds, F. Construction & Operation, 21-45 Assignment and transfer. Respondents have attempted to allege that Mr. Mouses complaint was one of show me the note theories, and/or vapor money theories. They are

incorrect, and have pled those theories because the District Court will always throw out those type of cases. While Mr. Mouse did not use those theories in his complaint, the fact remains that the general rule is that an original writing must be produced and its execution proven Daniel F. Hinkels Pindars Georgia Real Estate Law and Procedure (6th Ed. 2004), Vol. II, Execution of Deeds 19-34 Formal Requisites. The reason [such testimony is not excluded] is obvious;

such an instrument requires proof of execution before it can be admitted [into] evidence, but, because this is so, it does not follow that it must be conclusively taken as ... genuine. McArthur v. Morrison, 107 Ga. 796, 798, 34 S.E. 205 443*443 (1899). In fact, upon proof of execution, the genuineness of the

instrument may be attacked by competent evidence on the trial of the case in which the instrument is sought to be used. Its admission is not decisive of its genuineness. Id. Thus, a jury could still conclude that the instrument or the

signature on it was forged. See id. See also Rumsey, Agnor's Ga. Evidence (3rd ed.), 12-4. Further, Mr. Mouse has alleged that the foreclosing entities were not owners and/or holders of the Original Promissory Note, and that defendants cannot provide evidence of such ownership. Georgia law authorizes the secured creditor, the

holder of the promissory note, to exercise a power of sale. See O.C.G.A. 44-14162 et seq.;8 Weems v. Coker, 70 Ga. 746, 749 (1883) (Could there be a more conclusive defense to the foreclosure than that the party prosecuting it was not the holder of the debt or demand secured by the mortgage, which he failed to produce when called on, and offered nothing to show that he controlled it, or to explain why it was not forthcoming at the trial?), cited by Truitt v. Moister, 11 B.R. 15 (Bankr. N.D. Ga. 1981); Bowen v. Tucker Fed. Sav. & Loan Assoc., 438 S.E.2d 121, 122 (Ga. Ct. App. 1993) (It is established law in Georgia that although the holder of a note who is also the grantee of a security deed has the right to exercise the power of sale in the security deed upon default, he is not required to do so. He may sue on the note . . . .); Boaz v. Latson, 580 S.E.2d 572, 578 (Ga. Ct. App. 2003) ([T]he

The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court in the county in which the real property is located . O.C.G.A. 44-14-162(b) (emphasis added). Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. O.C.G.A. 44-14-162.2(a) (emphasis added).

security deed arose from the indebtedness allegedly established by the promissory note, and the deeds power of sale depended on default under the note.), revd on other grounds, 598 S.E.2d 485, 487 (Ga. 2004); Cummings v. Anderson, 173 B.R. 959, 963 (Bankr. N.D. Ga. 1994) (assignee of a note and security deed cannot foreclose upon the security until there has been an actual assignment), affd, 112 F.3d 1172 (11th Cir. 1997); Weston v. Towson, No. 5:04-CV-416, 2006 WL 2246206, at *6 (M.D. Ga. Aug. 4, 2006) (the holder of the note continues to retain remedies under the security deed so long as the debt evidenced by the note has not been satisfied). It is in fact necessary to prove the right to foreclose. The fact remains, that if the right to foreclose is called into question through suit being filed, the defendant must prove that they have the right to foreclose. The Georgia statute shows that, although it does not say that they must produce the note, it states that they must own the note. See O.C.G.A. 44-14-162 et seq.; Weems v. Coker, 70 Ga. 746, 749 (1883) (Could there be a more conclusive defense to the foreclosure than that the party prosecuting it was not the holder of the debt or demand secured by the mortgage, which he failed to produce when called on, and offered nothing to show that he controlled it, or to explain why it was not forthcoming at the trial?), cited by Truitt v. Moister, 11 B.R. 15 (Bankr. N.D. Ga. 1981); Bowen v. Tucker Fed. Sav. & Loan Assoc., 438 S.E.2d 121, 122 (Ga. Ct. App. 1993) (It is established law in Georgia that although the holder of a

note who is also the grantee of a security deed has the right to exercise the power of sale in the security deed upon default, he is not required to do so. He may sue on the note . . . .); Boaz v. Latson, 580 S.E.2d 572, 578 (Ga. Ct. App. 2003) ([T]he security deed arose from the indebtedness allegedly established by the promissory note, and the deeds power of sale depended on default under the note.), revd on other grounds, 598 S.E.2d 485, 487 (Ga. 2004); Cummings v. Anderson, 173 B.R. 959, 963 (Bankr. N.D. Ga. 1994) (assignee of a note and security deed cannot foreclose upon the security until there has been an actual assignment), affd, 112 F.3d 1172 (11th Cir. 1997); Weston v. Towson, No. 5:04-CV-416, 2006 WL 2246206, at *6 (M.D. Ga. Aug. 4, 2006) (the holder of the note continues to retain remedies under the security deed so long as the debt evidenced by the note has not been satisfied). Therefore, Plaintiffs allegations that the party attempting to foreclose is not the holder of the note would support a claim for violations of state statute, if proven. "The doctrine of law of the case ... expresses the practice of courts generally to refuse to reopen what has been decided. Erie Conduit Corp. v. Metropolitan Asphalt Paving Association, 560 F.Supp. 305, 307 (E.D.N.Y.1983), aff'd, 765 F.2d 135 (2d Cir.1985), quoting, Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Our Eighth Circuit Court of Appeals instructs that previously decided issues may be reconsidered "upon a showing of

clear error or manifest injustice." Liddell v. State of Missouri, 731 F.2d 1294, 1304 (8th Cir.1984), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984); Paulson v. Greyhound Lines, Inc., 628 F.Supp. 888, 891 (D.Minn. 1986), aff'd, 804 F.2d 506 (8th Cir.1986). Upon removal, the federal court must treat all state court rulings as if they had occurred in federal court. In the Matter of Meyerland Co., 910 F.2d 1257, 1262-63 (5th Cir.1990), rehearing granted en banc, 921 F.2d 55, 56 (5th Cir.1990); First Republicbank Fort Worth v. Norglass, Inc., 751 F.Supp. 1224, 1228 (N.D.Tex. 1990). That this case has been removed to federal court from the state district court does not limit the court's authority to correct clear errors or remedy manifest injustice. Resolution Trust Corp. v. Security Town Co., 745 F.Supp. 1216, 1221-22 (E.D. La.1990) (law of the case doctrine does not preclude a federal court upon removal from correcting state court rulings and granting appropriate relief). Thus, the law of the case doctrine does not preclude review or modification of the state district court's liability decision or denial of defendants' previously filed post-trial motions if the state district court's rulings were clearly erroneous or manifestly unjust. Similarly, the purpose of a motion for amended findings of fact and conclusions of law under Fed.R.Civ.P. 52(b) is to permit the court to remedy manifest errors of law or fact. Clark v. Nix, 578 F.Supp. 1515, 1516

(S.D.Iowa 1984), modified, Clark v. Brewer, 776 F.2d 226 (8th Cir.1985); Evans, Inc. v. Tiffany, 416 F.Supp. 224, 244 (D.Ill.1976). Rule 52(b) does not provide an avenue for relitigating issues upon which the moving party did not prevail at trial. DeGidio v. Pung, 125 F.R.D. 503, 505 (D.Minn.1989), aff'd, 920 F.2d 525 (8th Cir.1990); Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir.1986) (motion to amend findings does not secure a rehearing on the merits).[2] Defendants bear a heavy burden in seeking to demonstrate clear error or manifest injustice. Piekarski v. Home Owners Sav. Bank, FSB, 759 F. Supp. 542 - Dist. Court, Minnesota 1991. CONCLUSION AND PRAYER Mr. Mouse Prays that this Honorable Court can see what has happened, and will agree that what happened was wrong, and violated numerous rules, and laws. The only manifest injustice is the one bestowed upon Mr. Mouse by BOA, and their blatant disregard for the title and foreclosure laws of Georgia. Mr. Mouse further Prays that this Honorable Court will Reverse and Remand the Rulings, and Grant whatever they can to protect him from further injustice. Respectfully submitted, this 22nd day of January, 2013

By: __________________________ Gaellen Mouse, Appellant


6332 West Fayetteville Road Riverdale, GA 30296 (404) 934-8423

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed.R.App.P.

32(a)(7)(B) because this brief contains seven thousand two hundred fifty (7250) words, excluding the parts of the brief exempted by Fed.R.App. 32(a)(7)(B)(iii). 2. This brief complies with the type face requirements of Fed.R.App.P.

32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because this brief has been prepared using Microsoft Office 2007 Ultimate Edition, and Microsoft Word 2007, in 14 point, Times New Roman size and font.

This 22nd day of January, 2013 Re- Submitted - February 11, 2013

_________________________ Gaellen Mouse, Appellant

CERTIFICATE OF SERVICE I hereby Certify, that I have, this 22nd day of January, 2013, Corrected with Expanded Record Excerpts on February 11, 2013 served a true and correct copy of the foregoing Appellants Brief upon the Respondent/Appellee, through their attorney on file, by causing to be deposited with USPS, First Class Mail, proper postage affixed, and addressed as follows: Howell Alexander Hall PENDERGAST & ASSOCIATES, P.C. 115 Perimeter Center Place South Terraces, Suite 1000 Atlanta, GA 30346 _______________________ Gaellen Mouse