Case 9:20-cv-81728-DMM Document 7 Entered on FLSD Docket 10/01/2020 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:20-CV-81728-RS

FIRST AMERICAN BANK, as

Successor by Merger to Bank of
Coral Gables, LLC,

Plaintiff,

v.

LAURENCE SCHNEIDER, STEPHANIE

L. SCHNEIDER, et al.,

Defendants.
/

MOTION TO REMAND AND

INCORPORATED MEMORANDUM OF LAW

Plaintiff, FIRST AMERICAN BANK (hereinafter “First American”), by and through its

undersigned counsel and in accordance with 28 U.S.C. §§ 1331, 1332, 1441, 1446 and 1447,

hereby requests the remand of this foreclosure litigation to the Fifteenth Judicial Circuit in and for

Palm Beach County, Florida.

Background

The Defendants’ Notice of Removal [2-ECF No. 11] effects the second removal to this

Court of a state court residential foreclosure action styled: First American Bank, as successor by

merger to Bank of Coral Gables, LLC. v. Laurence S. Schneider, Stephanie L. Schneider, The Oaks

At Boca Raton Property Owners’ Assoc., et. al., Case No.: 502016-CA-009292, in the Circuit

1
Documents in the prior removed case will be identified as “1-ECF” and documents in the present case will be
identified as “2-ECF”, followed by the docket number.
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Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida.2 This mortgage

foreclosure action was filed in 2017 by First American against Laurence and Stephanie Schneider,

as owners, and also sought to foreclose the interests of a tenant and a homeowners association.

The case proceeded through judgments for monetary damages and foreclosure, appeal, sale of the

property, supplemental judgments, another appeal, entry of an order directing the clerk to issue

writ of possession, and finally, a deficiency judgment. In this case, no grounds for removal from

state court to federal court exist.

Under 28 U.S.C. § 1446(a), there is a condition to removal whereby the party removing

the action must file “all process, pleadings and orders served upon such defendant or defendants”

in the District Court. In the removal at hand, the Schneiders filed only a copy of the state court’s

docket sheet [2-ECF No. 1-2]. First American would submit that the Schneiders’ filing of the

state court’s docket sheet with the District Court is woefully non-compliant, it that, the filing does

not contain any “process, pleadings and orders served” upon the removing Defendants. Although

this procedural defect is an independent ground which warrants remand to the Palm Beach Circuit

Court, First American respectfully submits that the substantive grounds for remand are so

conclusive that the absent state court file is immaterial to a decision.3

In the first filed removal, and prior to First American filing its Motion to Remand, this

Court entered an Order to Show Cause [1-ECF No. 5] whereby the Court recognized that a

counterclaim alleging a federal question could not serve as a basis for ‘arising under’ jurisdiction

2
See First American Bank v. Laurence Schneider, et al., United States District Court for the Southern District of
Florida, Case No.: 9:17-cv-80723-DMM, 1-ECF 1.

3
First American does not undertake to fulfill the Schneiders obligations for filing the state court documents, and as
such, refers to state court filings herein without citation to the state court record. If for some reason this Court grants
the Schneiders leave to comply with section 1446(a), First American respectfully requests the opportunity to provide
the Court with record citations.

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and required the Schneiders to: (a) show good cause why this case should not be remanded to state

court, or, (b) indicate their consent to remand. In their Response to Court’s Order to Show Cause

[1-ECF No. 12, 8-1], the Schneiders indicated their consent to remand and further indicated they

intended “to prevent the sale” of their property in the related federal case filed by Laurence

Schneider, styled: “Schneider v. First American Bank, Case No. 9:17-cv-80728-DMM.” This

Court thereupon remanded the case to state court by Order dated June 22, 2017 [1-ECF No. 9].

The record of the state court demonstrates that the first removal was effected on June 9,

2017, just 20 days before the June 26, 2017 specially set hearing in the foreclosure case on First

American’s Motion for Summary Judgment. It is respectfully submitted that the timing of the first

removal by the Schneiders was an effort to preclude or postpone determination of First American’s

Motion for Summary Judgment – the Schneiders said as much in their Consent to Remand. In this

same foreclosure action, when confronted with an order directing the clerk to issue a writ of

possession whereby the sheriff was instructed to remove the Schneiders and give possession of the

subject property to First American on September 30, 2020, or as soon thereafter as practicable, the

Schneiders have again removed to this Court. This improvident removal was effected September

23, 2020 (just seven (7) days prior to the date the Schneiders were to be dispossessed), and again,

it appears this removal is clearly calculated to preclude or delay the sheriff’s execution of the writ

of possession.

The first removal of this case (dated June 9, 2017) relied on an alleged right to removal

appearing by reason of only Laurence Schneider having filed a counterclaim alleging federal

claims for relief. Stephanie Schneider had not asserted any affirmative claim for relief and was

not a party to the counterclaim [1-ECF No. 1]. By the time the Schneiders removed this case the

first time, all of Laurence Schneider’s counterclaims had been dismissed, with prejudice (by order

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dated April 4, 2017, the state court dismissed, with prejudice, Laurence Schneider’s

counterclaim).4 There have been no pleadings filed in this foreclosure action subsequent to this

Court’s remand after the first removal – all judgments were entered on the pleadings as they existed

when the case was first removed and supplemented by orders granting motions for attorneys’ fees,

costs, and expenses. In other words, no changes in the state court occurred by reason of which the

Schneiders might have learned new grounds for removal, and certainly, Stephanie Schneider at no

time asserted an affirmative claim against First American.

Memorandum of Law

A. Successive Removals Are Not Permitted --

If for no other reason, removal of this case for the second time after final judgments have

been entered and affirmed should not be countenanced. “Once a case is remanded to state court,

a defendant is precluded from seeking a second removal on the same ground.” Watson v. Carnival

Corp., 436 Fed. Appx. 954, 956-957 (11th Cir. 2011) citing St. Paul & C. Ry. Co. v. McLean, 108

U.S. 212, 217, 2 S. Ct. 498, 500, 27 L. Ed. 703 (108) (holding “that a party is not entitled, under

existing laws, to file a second petition for the removal upon the same grounds, where, upon the

first removal by the same party, the federal court declined to proceed and remanded the suit,

because of his failure to file the required copy within the time fixed by the statute.”). The

prohibition against removal “on the same ground” does not concern the theory on which federal

jurisdiction exists (i.e., federal question or diversity jurisdiction), but rather the pleading or event

that made the case removable. Watson, 436 Fed. Appx. at 957. See also S.W.S. Erectors, Inc. v.

Infax, Inc., 72 F. 3d 489, 492 (5th Cir. 1996) and Ruiz v. Carnival Corp., 2012 WL 626222 *1 (S.D.

Fla. Feb. 24, 2012). Thus, a defendant “can file a second removal petition when subsequent

4
On appeal, this order, among others, was affirmed by a state District Court of Appeal on July 25, 2018. Schneider
v. First American Bank, 252 So. 3d 264 (Fla. 4th DCA 2018).

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pleadings or events reveal a new and different ground.” Id. at 493 (emphasis in original). See

also Perriello v. Allied Prop. & Cas. Ins. Co., 2016 WL 11083334 * (S.D. Fla. Dec. 2, 2016)

(“Defendant sought a do-over for the inadequate diversity allegations in its first Notice of

Removal. But federal law does not allow that tactic and it was objectively unreasonable for

Defendant to think that it does.”).

The Schneiders have filed two Notices of Removal, and both are based on the same

amended counterclaim asserted by Mr. Schneider, alone, in the state court action. [2-ECF No. 1].

See also First American Bank v. Laurence Schneider, et al., United States District Court for the

Southern District of Florida, Case No.: 9:17-cv-80723-DMM, 2-ECF No. 1. However, the record

clearly demonstrates that on April 4, 2017, the state court dismissed, with prejudice, the

counterclaims asserted by Mr. Schneider. See First American Bank v. Laurence S. Schneider, et

al., Palm Beach County Circuit Court, DE 84. Despite the state court dismissal, two months later

the Schneiders filed their first Notice of Removal wherein they asserted Mr. Schneider’s dismissed

amended counterclaim as the basis for the removal. First American Bank v. Laurence Schneider,

et al., United States District Court for the Southern District of Florida, Case No.: 9:17-cv-80723-

DMM, 1-ECF No. 1.

By Order dated June 23, 2017, this Court remanded this case to the state court [1-ECF No.

5]. Upon this Court’s remand, Mr. Schneider appealed to the Fourth District Court of Appeal the

dismissal of his original and amended counterclaims, and, on July 25, 2018, Florida’s Fourth

District Court of Appeal affirmed the state court’s dismissal. Schneider v. First American Bank,

252 So. 3d 264 (Fla. 4th DCA 2018).

In the interim, First American sought and obtained an award of attorneys’ fees, costs, and

expenses, whereby the affirmed final judgments were supplemented by entry of an Amended Final

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Judgment (Supplemental Judgment) against Mr. Schneider and an Amended Final Judgment of

Foreclosure (Supplemental Judgment) against both Schneiders. The Schneiders took an appeal

from both Supplemental Judgments and the underlying order, which appeal was dismissed.

Laurence Schneider and Stephanie Schneider v. First American Bank, Florida’s Fourth District

Court of Appeal, Case No.: 4D20-709.

First American also proceeded to foreclosure sale under the Amended Final Judgment of

Foreclosure (Supplemental Judgment) and was the successful bidder at the foreclosure sale. As

the owner of the property, First American sought and obtained an order directing the clerk to issue

a writ of possession, whereby the sheriff of Palm Beach County was directed by the state court to

execute the writ and place First American into possession on, or as soon as practicable after,

September 30, 2020. Now, two years after the state appellate court affirmed the dismissal of the

counterclaims, with no further pleadings having been filed in the state court, and facing

dispossession, the Schneiders have filed a second Notice of Removal on the same pleadings as

their first Notice of Removal [1-ECF No. 1]. There is no subsequent pleading or event that reveals

a new and different ground for removal; therefore, the Schneiders have no objectively reasonable

basis for seeking removal.

* * *

First American’s remaining grounds for remand rely on well-settled principles that were

addressed and applied in the Report and Recommendation of Magistrate Judge Charles J. Kahn in

Ardis v. U.S. Bank Nat’l. Ass’n., 2017 WL 3929318 (N.D. Fla. July 7,2017).5 Starting with the

fundamental premise that a removing party has the burden of demonstrating that this Court has

5
Judge Kahn’s Report and Recommendation was adopted verbatim and incorporated by reference in an Order to
Remand reported at Ardis v. U.S. Bank Nat’l. Assoc., 2017 WL 3944286 (N.D. Fla. 2017)

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jurisdiction (id. at *2), and using Magistrate Judge Kahn’s Report and Recommendation as an

outline, the general principles governing whether this case should be remanded are enunciated and

applied to this case below:

B. Removal is Untimely –

Once a final judgment is entered and the time to appeal has expired, the action has

concluded and is no longer subject to removal. Id. If a defendant wishes to remove a case, he or

she must do so within 30 days of service of a pleading which sets forth the basis for removal. 28

U.S.C. §1446(b). If a case is not initially removable, “a notice of removal may be filed within 30

days after receipt by the defendant, through service or otherwise, of a copy of an amended

pleading, motion, order or other paper from which it may first be ascertained that the case is one

which is or has been removable.” 28 U.S.C. § 1446(b)(3). See Ruiz, 2012 WL 626222 at 1. “The

Fifth Circuit has indicated that the ‘other paper’ conversion requires a voluntary act by the

plaintiff.” S.W.S. Erectors, Inc., 72 F. 3d at 494 citing Gaitor v. Peninsular & Occidental S.S. Co.,

287 F. 2d 252, 254 (5th Cir. 1961).6 Thus, a document created entirely by a defendant is not

considered “other paper” under section 1446(b)(3) and cannot start the 30-day period for

removing. S.W.S. Erectors, Inc., 72 F. 3d at 494.

Simply stated, the Schneiders do not identify any “amended pleading, motion, order or

other paper” from which they ascertained that this case is removable. On August 17, 2016, the

initial Complaint was filed, on June 26 and 30, 2017 the judgments were entered, on July 25, 2018

the judgments were affirmed on appeal, on February 26, 2020 said judgments were supplemented,

on August 3, 2020 the property was sold at a foreclosure sale, on September 3, 2020 the appeal of

the supplemental judgments was dismissed, and on September 22, 2020 a final judgment awarding

6
In Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding
precedent all decisions handed down by the former Fifth Circuit before October 1, 1981.

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a deficiency was entered. The defendants filed their Notice of Removal three years after the final

judgments were entered, seven months after said judgments were supplemented, and a day after

the deficiency judgment was entered. See Deja Vu Entm’t, LLC v. Allgood Entm’t, Inc., 2013 WL

12095573 * 1 (S.D. Fla. Feb. 22, 2013) adopted 2013 WL 12095574 (S.D. Fla. March 13, 2013)

(holding that the notice of removal filed a year after entry of a final judgment in state court action

was untimely; “[t]o the extent the defendants argue that the basis for removal did not arise until

later in the litigation, this argument is not compelling. The issues providing a basis for removal

would have certainly arisen prior to the entry of the final judgment.”). Moreover, a case may not

be removed under 28 U.S.C. § 1446(b)(3) on the basis of diversity jurisdiction “more than 1 year

after commencement of the action, unless the district court finds that the plaintiff has acted in bad

faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c).

Accordingly, the case should be remanded.

C. Jurisdiction –

Now, more than three years after this case was remanded, as grounds for invoking the

jurisdiction of this Court, the Schneiders appear to assert that they never presented a consent to

remand pursuant to this Court’s Order to Show Cause, and as such, this Court did not relinquish

jurisdiction and remand the case to state court. The theory is flawed. It is axiomatic that remanding

a case to state court terminates the jurisdiction of a federal district court over that case. Browning

v. Navarro, 743 F. 2d 1069, 1078 (5th Cir. 1984), citing U.S. v. Rice, 327 U.S. 742 (1946) (applying

28 U.S.C. § 71). The text of 28 U.S.C. § 1447(c) establishes that jurisdiction remains with the

district court until the jurisdiction-transferring event has occurred: Once the remand order is

certified and mailed by the clerk, the matter remanded is removed from federal jurisdiction

pursuant to 28 U.S.C. § 1447(c). Arnold v. Garlock, Inc., 278 F. 3d 426, 437-438 (5th Cir. 2001);

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see also, Agostini v. Piper Aircraft Corp., 729 F. 3d 350 (3rd Cir. 2013). Here, the record reflects

that the clerk of this Court sent a letter to the Clerk of Circuit and County Courts, 15th Judicial

Circuit of Florida, providing a certified copy of this Court’s Order of Remand [1-ECF No. 11]. At

that point, this Court was divested of jurisdiction.

C.1 Federal Question Jurisdiction –

The Schneiders assert that this case is removable based on the amended counterclaim

asserted by Mr. Schneider in the state court action on March 6, 2017. [2-ECF No. 1]. However,

the Schneiders’ theory of subject matter jurisdiction is flawed in that “a counterclaim – which

appears as part of the defendant’s answer, not as part of the plaintiff’s complaint – cannot serve as

the bases for ‘arising under’ jurisdiction.” Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc.,

535 U.S. 826, 831, 122 S. Ct. 1889, 1894, 153 L. Ed. 13 (2002); see, 1-ECF No. 5. However, this

analysis is not even required because the counterclaim had been dismissed with prejudice on April

7, 2017, and as such, no pleading existed on which to predicate this second removal.

D. Diversity Jurisdiction –

District courts have original jurisdiction of all civil actions where the matter in controversy

exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of

different States.” 28 U.S.C. § 1332(a)(1). An action otherwise removable solely on the basis of

diversity jurisdiction may not be removed “if any of the parties in interest properly joined and

served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. §

1441(b)(2). Thus, on diversity grounds, Florida citizens who are named as defendants in lawsuits

brought in Florida state courts cannot remove that action. See Lincoln Prop. Co. v. Roche, 546

U.S. 81, 83-84, 126 S. Ct. 606, 610, 163 L. Ed. 2d 415, 421 (2005) (“When federal court

jurisdiction is predicated on the parties’ diversity of citizenship, see §1332, removal is permissible

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‘only if none of the parties in interest properly joined and served as defendants is a citizen of the

State in which [the] action [was] brought.’”) and McLean v. Nero, 2020 WL 2084775 * 2 (M.D.

Fla. April 30, 2020) (holding removal is barred because the removing defendant is a citizen of

Florida).

Here, Laurence Schneider and Stephanie Schneider are citizens of the State of Florida, the

state in which the action was brought. See Answer, Affirmative Defenses, and Counterclaim filed

by the Schneiders in the state action, ¶ 3 (wherein the Schneiders admit they are residents of the

State of Florida). See also 2-ECF No. 1 (wherein the Schneiders provide their Florida address -

the same address of the property that was foreclosed - to the Court and all parties). Therefore,

there are no grounds for removal based on diversity of citizenship.

E. Co-Defendant Never Consented to Removal --

“When a civil action is removed solely under section 1441(a), all defendants who have

been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C.

§ 1446(2)(A). See Russell Corp. v. Am. Home Assur. Co., 264 F. 3d 1040, 1044 (11th Cir. 2001)

(“The unanimity requirement mandates that in cases involving multiple defendants, all defendants

must consent to removal.”). The Oaks at Boca Raton Property Owners’ Association, Inc. (“Oaks”)

were joined as defendants and served with a Summons and copy of the Complaint on August 22,

2016. The Schneiders do not allege, and cannot demonstrate, that The Oaks consented to removal.

Ardis, 2017 WL 3929318 at 3. Accordingly, removal is improper.

* * *

WHEREFORE, Plaintiff, First American Bank, respectfully requests that this Court enter

an Order remanding this case to the Circuit Court of the Fifteenth Judicial Circuit In and For Palm

Beach County, Florida, and, that the Clerk of this Court be directed to transmit a certified copy of

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said Order to the Clerk of the Fifteenth Judicial Circuit in accordance with this Court’s usual

practices.

CERTIFICATE OF GOOD FAITH CONFERENCE

Pursuant to Local Rule 7.1(a)(3), I hereby certify that counsel for the movant has made

reasonable efforts to confer with all parties or non-parties who may be affected by the relief sought

in the Motion, by providing a copy of the draft Motion to Defendants, Laurence Schneider and

Stephanie Schneider, via email on September 30, 2020 at 3:19 pm, but has been unable to do so.

Respectfully submitted,

KELLER & MESA, LLP

Attorneys for First American Bank
121 Majorca Avenue, #200
Coral Gables, FL 33134
Telephone: (305) 529-8500
Telefax: (305) 529-0228
Email: jkeller@kellermesa.com

By: s/ John W. Keller, III

John W. Keller, III
Florida Bar No. 229989

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CERTIFICATE OF SERVICE

I hereby certify that true and correct copy of the foregoing, Motion to Remand and

Incorporated Memorandum of Law, was served by email and U.S. Mail on October 01, 2020, on

all counsel or parties of record shown on the Service List below.

By: s/ John W. Keller, III

John W. Keller, III

Service List

Laurence Schneider, pro se Stephanie Schneider, pro se

Defendant Defendant
Email: larry@sacapitalpartners.com Email: steffschneider13@gmail.com
17685 Circle Pond Court 17685 Circle Pond Court
Boca Raton, FL 33496 Boca Raton, FL 33496
Telephone: (305) 710-4201 Telephone: (561) 322-5103

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