Gongora v. City of Miami Beach, Florida

United States District Court

for the

Southern District of Florida

Michael Gongora and Iris Rait, )

Plaintiffs, )

)

Civil Action No. 21-22654-Civ-Scola

v. )

)

City of Miami Beach, Defendant. )

Order Granting in Part and Denying in Part Motion for Remand

This cause is before the Court upon the Plaintiffs Michael Gongora and

Iris Rait’s motion for remand. (ECF No. 9.) The City of Miami Beach (the “City”)

does not oppose the motion if the Plaintiffs intend to dismiss Count VI of the

amended complaint which states a claim under 42 U.S.C. § 1983. For the

reasons stated below, the motion for remand is granted in part and denied in

part. (ECF No. 9.)

1. Background

This action arises out of the Plaintiff’s challenge to an amendment (later

enacted as Section 2.02 of the City Charter) limiting the terms of service for

City of Miami Beach (the “City”) commissioners and mayors. Plaintiff Gongora

is a sitting commissioner for the City and he intends to run for another term in

November 2021. (Am. Compl. ECF No. 1-2 at ¶¶ 8-9.) The City advised Gongora

that he is precluded from running for another term due to the retroactive

application of Section 2.02 which limits commissioner and mayoral terms of

service. Plaintiff Rait is a resident and voter in the City. (Id. at ¶ 8.) Rait intends

to vote in the next election and she voted in favor of the amendment and did

not understand that it would be applied retroactively to sitting commissioners.

(Id. at ¶ 3.)

On July 9, 2021, the Plaintiffs initiated this action against Defendant

City of Miami Beach in the Eleventh Judicial Circuit in and for Miami-Dade

County. In their complaint, the Plaintiffs allege that the City committed several

procedural errors in enacting an amendment to the City Charter, later

incorporated into Section 2.02, in violation of Florida law. The Plaintiffs seek

declaratory relief as to their rights under several Florida Statutes and whether

the City’s retroactive application of Section 2.02 violates the Florida

Constitution. The Plaintiffs amended the complaint as a matter of course to

add one count of a violation of 42 U.S.C. § 1983. (Count VI, Am. Compl. ECF

No. 1-2 at ¶¶ 88-95.) The amended complaint alleges that “Plaintiffs are in

doubt as to his rights, privileges, immunities, and obligations under Section

2.02 of the Charter,” and that “Defendant City of Miami Beach, acting under

color of law, violated rights secured to the Plaintiffs by the First and Fourteenth

Amendments to the United States Constitution including the right to freedom

of association, the right to due process of law and the right to equal protection

under the law.” (Id. at ¶¶ 91, 95.)

On July 23, 2021, the City removed the case to this division asserting

federal question jurisdiction. (Not. of Removal, ECF No. 1.) Three days later, the

parties filed a joint motion for expedited case management order. (ECF No. 3.)

Therein, the parties request an abbreviated scheduling order setting all pretrial

deadlines from July 2021 through August 2021. (State Case Management Plan,

ECF No. 3-1). The parties seek a resolution of this action before the September

2021 deadline for the candidate qualifying period, or at the latest before the

November 2021 general elections. (Id. at 2.) To accommodate the parties’

request for an expedited resolution of this case, the Court entered an order to

show cause directing the parties to explain why Count VI should not be

dismissed. (ECF No. 4.) The Court noted that amended complaint seemingly

failed to state a claim for declaratory relief under the First and Fourteenth

Amendment. (Id. at 1.)

The City responded that Count VI should be dismissed for failure to state

a claim because “Count VI does not articulate the factual predicate for the

alleged constitutional violations, nor does it otherwise explain the legal theory

for the alleged violations.” (ECF No. 5 at 2.) The Plaintiffs filed their reply

explaining that “[t]he inappropriate retroactive application of the improperly

adopted Charter Amendment violates Plaintiffs’ ‘basic constitutional rights’

found in the First and Fourteenth Amendments, including their rights to freely

associate and the right to ballot access.” (ECF No. 8 at 1.)

The Plaintiffs also filed the pending motion for remand and attorney’s

fees. (ECF No. 9.) They argue that the case should be remanded because “it is

well settled that the mere presence of a federal issue in a state cause of action

does not automatically confer federal jurisdiction.” (Id. at 2.) The City does not

oppose the relief sought so long as the Plaintiffs decide to dismiss Count VI. (Id.

at 5.)

2. Discussion

On a motion to remand, the removing party bears the burden of showing

the existence of federal subject matter jurisdiction. Pacheco de Perez v. AT&T

Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Any uncertainty as to removal

should be resolved in favor of remand. Scimone v. Carnival Corp., 720 F.3d 876

(11th Cir. 2013). The test ordinarily applied for determining whether a claim

arises under federal law is whether a federal question appears on the face of

the plaintiff's well-pleaded complaint. Louisville & Nashville R.R. v. Mottley, 211

U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). “As a general rule, a case

arises under federal law only if it is federal law that creates the cause of

action.” Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). “The case,

however, may arise under federal law if a well-pleaded complaint established

that [the] right to relief under state law requires resolution of a substantial

question of federal law in dispute between the parties.” Id. at 1505. However,

the “mere presence of a federal issue in a state cause of action does not

automatically confer federal-question jurisdiction.” Id. (citing Merrell Dow

Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813–14 & n. 11, 106 S.Ct.

3229, 3234–35 & n. 11, 92 L.Ed.2d 650 (1986)). See also Moore v. Chesapeake

& Ohio Ry. Co., 291 U.S. 205, 212–15, 54 S.Ct. 402, 405–06, 78 L.Ed. 755

(1934) (that part of state statutory scheme requires some analysis of federal

law is insufficient to invoke federal jurisdiction)

The City’s notice of removal relies on the amended complaint’s allegation

that “Defendant City of Miami Beach, acting under color of law, violated rights

secured to the Plaintiffs by the First and Fourteenth Amendments to the United

States Constitution including the right to freedom of association, the right to

due process of law and the right to equal protection under the law.” (ECF No.

1-2 at ¶ at 95.) This statement alone is insufficient to state a federal claim.

Indeed, in their response to the Court’s order to show cause, the Plaintiffs

explained what they intended to allege: that the retroactive application of

Section 2.02 affects Gongora’s access to the ballot in violation of the United

States Constitution.

Moreover, as the Plaintiffs note, remand is appropriate because no

interpretation of federal law is necessary to determine their claims. The parties

do not seem to dispute that claims of access to ballot may implicate the United

States Constitution. However, the amended complaint mentions the Plaintiffs’

federal constitutional rights in two isolated paragraphs. The Plaintiffs dedicate

the great majority of the complaint to violations of state law and the Florida

Constitution. The issue at the heart of the Plaintiffs’ amended complaint is

whether the City violated Florida law through its actions in enacting and

retroactively applying Section 2.02. Thus, no substantial question of federal

law must be answered to determine plaintiff's claims and federal jurisdiction is

lacking. Diaz, 85 F.3d at 1505; Hansard v. Forsyth Cty., GA, 191 F. App’x 844,

846 (11th Cir. 2006). For these reasons, the motion for remand is granted.

Lastly, the Court does not find that an award of attorney’s fees is

appropriate under the circumstances and thus, the motion is denied on that

point. “An order remanding the case may require payment of just costs and any

actual expenses, including attorney fees, incurred as a result of the

removal.” 28 U.S.C. § 1447(c). An award of fees and costs under § 1447(c) is

discretionary, but the court may only exercise its discretion where the

removing party lacked an objectively reasonable basis for seeking

removal. Siman v. Ocean Bank, N.A., No. 1:15-CV-24258-KMM, 2016 WL

739659, at *5 (S.D. Fla. Feb. 25, 2016) (Moore, J.) (citing Martin v.

Franklin Capital Corp., 146 U.S. 132, 141 (2005)). Here, while removal was

ultimately unsuccessful, given the ambiguity of Count VI, the Court finds that

the City was not objectively unreasonable in its removal of the case.

3. Conclusion

Accordingly, the Plaintiffs’ motion for remand is granted in part and

denied in part. (ECF No. 9.) The Clerk of the Court is directed to close this

case with instructions to remand to the Eleventh Judicial Circuit in and for

Miami-Dade County. All other motions are denied as moot. (ECF No. 3.)

Done and ordered in Miami, Florida, on July 31, 2021.

Robert N. [3 Jr.

United States District Judge