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Smith v. HSBC Bank USA, N.A.

United States District Court, S.D. Georgia, Brunswick Division

September 1, 2017

MARVIN B. SMITH, III & SHARON H. SMITH, Plaintiffs,
v.
HSBC BANK USA, N.A.; WELLS FARGO BANK, N.A.; S. ANDREW SHUPING, JR.; SHUPING, MORSE & ROSS LLP; RUBIN LUBLIN, LCC; BRET CHANESS; and PETER LUBLIN; Defendants.

          ORDER

          LISA GODBEY WOOD, DISTRICT JUDGE UNITED STATES DISTRICT COURT.

         Younger abstention is not necessary in this pro se foreclosure case, the complaint fails to state any federal claim, and this Court will decline to exercise supplemental jurisdiction over the state claims.

         BACKGROUND

         This case was removed under federal-question jurisdiction on June 9, 2015. Dkt. No. 1 at 2. This Court dismissed pro se Plaintiffs Marvin and Sharon Smith's claims-including one for wrongful foreclosure-on March 1, 2016. See generally Dkt. No. 37. The Eleventh Circuit remanded on February 14, 2017. Dkt. Nos. 42-43.

         The Smiths moved for Younger abstention on March 22, 2017. Dkt. No. 48. The Court denied that request as moot on July 7, 2017. Dkt. No. 61. The Smiths moved for reconsideration on July 11, 2017. Dkt. No. 62. That motion . has been fully briefed and is now ripe. Dkt. Nos. 63-65, 67, 71, 75-79. Also before the Court are Defendants Bret Chaness, Peter Lublin, and Rubin Lublin, LLC's (together, "Rubin Lublin") June 6, 2015 motion to strike the complaint, dkt. no. 8 (briefed at dkt. nos. 9, 17, 22-25); the March 28, 2017 dismissal motion of S. Andrew Shuping, Jr. and Shuping, Morse & Ross LLP (together, "Shuping"), dkt. no. 48 (briefed at dkt. nos. 51, 56, 80); the March 29, 2017 one brought by HSBC Bank USA, N.A. and Wells Fargo Bank, N.A. (together, "the Banks"), dkt. no. 49 (briefed at dkt. nos. 56, 80); and the Smiths' August 21, 2017 motion to amend the parties, dkt. no. 81.

         LEGAL STANDARDS

         "[P]ro se pleadings are . . . construed liberally." Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). But a court cannot "serve as de facto counsel for a party, or . . . rewrite an otherwise deficient pleading in order to sustain an action." Powers v. Avondale Baptist Church, 393 F.App'x 656, 657 (11th Cir. 2010) (per curiam) (citation omitted).

         A district court's lounger-abstention decision is reviewed for abuse of discretion, but the court cannot abstain "if there have been proceedings of substance and the federal litigation thus has moved beyond the embryonic stage before the state action commences." For Your Eyes Alone, Inc. v. City of Columbus, 281 F.3d 1209, 1217 (11th Cir. 2002).

         A suit can be dismissed if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A complaint must be "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It must "contain inferential allegations from which [the court] can identify each of the material elements necessary to sustain a recovery under some viable legal theory." Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684 (11th Cir. 2001). Although a court must assume the truthfulness of the complaint's factual allegations, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

         "The decision to exercise supplemental jurisdiction over pendant state claims rests within the discretion of the district court." Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004) (per curiam). "A district court may decline to exercise supplemental jurisdiction if itxhas dismissed all claims over which it has original jurisdiction'"-in fact, it is encouraged to do so. Marshall v. Washington, 487 F.App'x 523, 527 (11th Cir. 2012) (per curiam) (quoting 28 U.S.C. § 1367(c)(3)).

         DISCUSSION

         Younger abstention does not apply. The Smiths' federal claims fail. The Court declines supplemental jurisdiction over their state ones. This case will be dismissed.

         I. YOUNGER ABSTENTION WOULD NOT BE APPROPRIATE.

         Abstention under Younger is not in order. Federal courts are under a ''virtually unflagging obligation ... to exercise the jurisdiction given them." Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). But "there are some classes of cases in which the withholding of authorized equitable relief because of undue interference with state proceedings is *the normal thing to do.'" New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 359 (1989) (citation omitted).

         One such class was recognized by Younger v. Harris, 401 U.S. 37 (1971). Younger abstention is only proper if three questions can be answered "yes": (1) is there "an ongoing state judicial proceeding" with which "the federal proceeding would interfere"; (2) if there is, does it "implicate important state interests"; and (3) "is there an adequate opportunity in the state proceedings to raise" the issues presented in the federal case. Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); 31 Foster Children v. Bush, 329 F.3d 1255, 1276 (11th Cir. 2003).

         The first element is unmet here. To be sure, there is a state ejectment proceeding. Dkt. No. 47 at 7. Although the Georgia Supreme Court denied certiorari, dkt. no. 61 at 1, and the Superior Court denied the Smiths' motion to vacate, dkt. no. 77-2 ¶ 4, the Smiths may appeal that denial. Dkt. No. 62 at 4. ...


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