United States District Court, S.D. Georgia, Brunswick Division
MARVIN B. SMITH, III & SHARON H. SMITH, Plaintiffs,
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.
GODBEY WOOD, DISTRICT JUDGE UNITED STATES DISTRICT COURT.
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.
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.
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.
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).
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).
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).
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. §
abstention does not apply. The Smiths' federal claims
fail. The Court declines supplemental jurisdiction over their
state ones. This case will be dismissed.
YOUNGER ABSTENTION WOULD NOT BE
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)
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).
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. ...