Bank of New York as Trustee for the Certificate Holders of Cwalt, Inc. 2005-10CB v. Phyllis A. Angley , 559 F. App'x 956 ( 2014 )

Case: 13-11208 Date Filed: 03/28/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11208
Non-Argument Calendar
________________________
D.C. Docket No. 3:12-cv-01212-HES-MCR
BANK OF NEW YORK AS TRUSTEE FOR THE
CERTIFICATE HOLDERS OF CWALT, INC. 2005-10CB,
Plaintiff-Counter Defendant-Appellee,
versus
PHYLLIS A. ANGLEY,
Defendant-Counter Claimant-Third Party Plaintiff-Appellant,
ANGLEY,
unknown spouse of Phyllis A. Angley, if married, et al.,
Defendants,
FLORINDA BERLANGA, et al.,
Third Party Defendants.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 28, 2014)
Before TJOFLAT, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Phyllis Angley, appearing pro se, appeals the district court’s sua sponte
order remanding Appellee’s foreclosure action against her to state court. After
careful consideration of Angley’s argument, we affirm.
Angley’s husband, Pablo Berlanga, removed this case to federal court with
Angley’s consent. The district court remanded after concluding that the notice of
removal had been untimely filed. Angley argues that the notice was timely. We
affirm without addressing this argument because the district court lacked subject
matter jurisdiction, requiring remand to state court. 28 U.S.C. § 1447(c) (“If at any
time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”); see Koziara v. City of Casselberry, 392
F.3d 1302, 1306 n.2 (11th Cir. 2004) (holding that we can affirm on any ground
supported by the record).
“Appellate courts have a responsibility to examine the subject matter
jurisdiction of the district courts in actions that they review.” Williams v. Best Buy
Co., 269 F.3d 1316, 1318 (11th Cir. 2001). A state-court action may only be
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removed to federal court if it could have been filed in federal court originally based
on diversity or federal question jurisdiction. Lindley v. FDIC, 733 F.3d 1043, 1050
(11th Cir. 2013). The defendant seeking removal bears the burden of proving that
jurisdiction exists. Williams, 269 F.3d at 1319.
Angley and Berlanga failed to meet that burden. Berlanga’s notice of
removal asserted that federal question jurisdiction existed based on 18 U.S.C. §
1595. On appeal, Angley argues that Appellee’s act of filing a foreclosure suit in
state court formed the basis for Angley and Berlanga’s § 1595 violation.
Appellee’s complaint, however, alleged only state-law claims, 18 U.S.C. § 1595was not part of the well-pleaded complaint, and it is Angley and Berlanga—not
Appellee—who asserts an 18 U.S.C. § 1595 claim.
There can be no federal question jurisdiction or removal based on an
argument raised by the defense, whether that argument is a defense or a
counterclaim. See Ervast v. Flexible Prods. Co., 346 F.3d 1007, 1012 (11th Cir.
2003) (“[U]nless the face of a plaintiff’s complaint states a federal question, a
defendant may not remove a case to federal court on this basis, even though a
possible defense might involve a federal question.”); see also Holmes Grp., Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831, 122 S. Ct. 1889, 1894
(2002) (“It follows that a counterclaim—which appears as part of the defendant’s
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answer, not as part of the plaintiff’s complaint—cannot serve as the basis for
‘arising under’ jurisdiction.”).
Further, because Angley and Berlanga never asserted diversity jurisdiction
in the district court, and Angley expressly disclaims it on appeal, they have not met
their burden of showing that subject matter jurisdiction exists based on diversity
jurisdiction, either. See Williams, 269 F.3d at 1319; see also Ervast, 346 F.3d at1012 n.4 (holding that, “[a]lthough [diversity jurisdiction may have existed], we
decline the invitation to exercise jurisdiction on that basis because [the defendant]
had the burden to plead this basis in its notice of removal, and it did not”).
Because remand to state court was the correct result, we affirm.
AFFIRMED.
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