OWENS

v.

RAS LAVRAR, LLC

264 F. 3d 1040, 1050 (11th Cir. 2001). Federal courts have “an ever-present obligation to satisfy themselves of their subject matter jurisdiction.” Liberty Mutual Ins. Co. v. Ward Trucking Corp., 48 F. 3d 742, 750 (3d Cir. 1995). Because federal courts are courts of limited subject matter jurisdiction, this Court must ascertain whether it has jurisdiction over a case or controversy. See Cadet v. Bulger, 377 F. 3d 1173, 1179 (11th Cir. 2004).

A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction, and motions under Rule 12(b)(1) can be a facial or factual attack. McElmurray v. Consol. Gov't of Augusta–Richmond Cnty., 501 F. 3d 1244, 1251 (11th Cir. 2007). A facial attack challenges subject matter jurisdiction based on allegations in the complaint, and the court accepts the allegations as true—the court employs standards similar to a 12(b)(6) attack for failure to state a claim. Id.; Kennedy v. Floridian Hotel, Inc., 998 F. 3d 1221, 1230 (11th Cir. 2021). On the other hand, in a factual attack, extrinsic evidence may be considered, and so long as the jurisdictional issues are not “inextricably intertwined with the merits,” courts are free to weigh evidence. Kennedy, 998 F. 3d at 1230, 1232.

III. Discussion

a. Article III Standing

As a threshold jurisdictional issue, the Court must consider standing first. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02, 118 S. Ct.

3

1003, 140 L. Ed. 2d 210 (1998). Here, Defendant removes Plaintiffs action from Florida state court to federal court based upon purported federal question jurisdiction, (see Doc. 1), yet Defendant contends that this Court must dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of Article III standing. (See Doc. 6.) Defendant appears to misapprehend that remand—not dismissal—is required. 28 U.S.C. § 1447(c); Ladies Mem'l Ass'n, Inc. v. City of Pensacola, 34 F. 4th 988, 993–94 (11th Cir. 2022) (“When a case is removed from state to federal court and the plaintiffs do not have Article III standing in federal court, the district court's only option is to remand back to state court."). Defendant cannot remove this case from state court and then subsequently assert that Plaintiff lacks Article III standing. See Palm-Aire Country Club Condo. Ass'n No. 8, Inc. v. City of Pomрапо Beach, No. 24-cv-62388-WPD, 2024 U.S. Dist. LEXIS 228821, at *3 (S.D. Fla. Dec. 18, 2024).

When Defendant removed this action to federal court, it assumed the burden of establishing this Court's subject matter jurisdiction, including Plaintiff's standing in federal court. See Byam-Hunte v. ClearStar, Inc., No. 8:23-cv-2802-CEH-UAM, 2024 U.S. Dist. LEXIS 78227, at *4 (M.D. Fla. Apr. 30, 2024)). Although Plaintiff raises claims under a federal statute, Defendant has not met its burden of establishing that subject matter jurisdiction exists in federal court. In fact, Defendant insists that this Court

4

does not have subject matter jurisdiction. As such, the undersigned recommends this case be remanded to Florida state court.

IV. Recommendation

Accordingly, it is RECOMMENDED:

1. The Case be REMANDED to the Circuit Court for the Fourth Judicial Circuit in and for Duval County, Florida.

2. The Motion (Doc. 6) be DENIED as moot.

3. All pending motions be DENIED as moot, and the case be CLOSED.

DONE AND ENTERED at Jacksonville, Florida, on January 21, 2025.

MonteCR

MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to: The Hon. Marcia Morales Howard Chief United States District Judge Counsel of Record

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[fn 1]: "Within 14 days after being served with a copy of [a report and recommendation on a dispositive motion], a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). “A party may respond to another party's objections within 14 days after being served with a copy.” Id. A party's failure to serve and file specific objections to the proposed findings and recommendations alters the scope of review by the District Judge and the United States Court of Appeals for the Eleventh Circuit, including waiver of the right to challenge anything to which no specific objection was made. See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1.