DOT Fund LLC v. Balbina and Family Corp. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1:26-cv-23645-HERNANDEZ
DOT FUND, LLC,
Plaintiff,
v.
BALBINA AND FAMILY CORP., et al.
Defendants.
_________________________________________/
ORDER
This matter is before the Court on Plaintiff’s Verified Motion to Strike Notice of Removal as
Legal Nullity, or in the Alternative, for Remand and Award of Attorneys’ Fees and Incorporated
Memorandum of Law (the “Motion”), [ECF No. 5].1 For the reasons below, Plaintiff’s motion to
strike Defendant Yaysi Zoila Padron’s (“Defendant Padron”) Notice of Removal (the “Notice”) [ECF
No. 1] is DENIED. But Plaintiff’s alternative request for remand is GRANTED. The request for
sanctions is DENIED.
* 	* 	*
On May 22, 2026, Defendant Padron filed her Notice pursuant to 28 U.S.C. §§ 1441 and 1446,
[ECF No. 1]. 	Although the Notice purports to be filed on behalf of both Defendant Padron and
Defendant Balbina and Family Corp. (“Defendant BFC”) (collectively “Defendants”)2, it was signed
solely on behalf of Defendant Padron. 	[ECF No. 1 at 3]. 	The Notice argued that this Court has
1 The Parties consented to magistrate judge jurisdiction on July 22, 2026. [ECF No. 8].
2 Plaintiff’s Verified Foreclosure Complaint also names John Doe, Jane Doe, Unknown Parties/Tenants in
Possession, and “any and all persons whether living or dead, all unknown heirs, devisees, grantees, assignees,
lienors, creditors, and/or trustees of the claimants by, through or under them and all parties having or claiming
to have any right, title or interest in the property herein described” as co-defendants. [ECF No. 1-2 at 1].
However, “fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738
(11th Cir. 2010).
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subject matter jurisdiction pursuant to 15 U.S.C. § 1692k(d), 15 U.S.C. § 1692e(10), 15 U.S.C.
§ 1692g(a)(3), and 15 U.S.C. § 1692g(a)(5) of the Fair Debt Collection Practices Act (“FDCPA”),
warranting removal under 28 U.S.C. § 1441(a) and 28 U.S.C. § 1331. [ECF No. 1 at 2].
Plaintiff filed its Motion on June 16, 2026, asking that we strike the Notice under Federal Rule
of Civil Procedure 12(f). [ECF No. 5 at 1, 11–12]. Alternatively, Plaintiff moves to remand the case
to the state, contending that this Court lacks jurisdiction and that removal was improper for various
procedural reasons as well. Id. at 1. Plaintiff also seeks attorneys’ fees under 28 U.S.C. § 1447(c) and
sanctions under Federal Rule of Civil Procedure 11(c). Id. at 12–15. As detailed below, the Court will
remand the case on jurisdiction grounds and deny the request for attorneys’ fees and sanctions.
I. 	Default Under Local Rule 7.1(c)(1)
Because the Motion was filed on June 16, 2026, Defendants had to file a response by June 30,
2026. See S.D. FLA . L.R. 7.1(c)(1). When they failed to do so, we ordered them to explain “why they
failed to timely respond to Plaintiff’s Motion and why the Motion should not be granted and this
action remanded to state court.” 	[ECF No. 7]. 	Defendants were warned that “[f]ailure to timely
comply with this [Paperless] Order may result in dismissal of this action.” Id. Defendants have not
responded to the court’s order. Additionally, the parties failed to appear at the August 17, 2026 status
conference in this matter. [ECF Nos. 9 & 10]. Although Plaintiff excused its absence, Defendants
did not.
Local Rule 7.1(c)(1) reads, in relevant part:
Requirements and Timing. For all motions, except motions served with
the summons and complaint, each party opposing a motion shall file
and serve an opposing memorandum of law no later than fourteen (14)
days after service of the motion. Failure to do so may be deemed
sufficient cause for granting the motion by default . . . .
S.D. FLA . L.R. 7.1(c)(1) (bold emphasis supplied). On this basis alone, the Court may grant the Motion.
Id. Notwithstanding Defendants’ failure to comply with Local Rule 7.1(c)(1), this Court will address
the merits as well.
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II. 	Motion to Strike
Plaintiff’s request to strike the Notice pursuant to Federal Rule of Civil Procedure 12(f) is
improper. Federal Rule of Civil Procedure 12(f) “applies only to ‘pleadings,’ defined by Fed.R.Civ.P.
7(a) to include only a complaint, an answer to a complaint, an answer to a counterclaim, an answer to
a crossclaim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer
(if the court orders one).” Vanderwall v. United Airlines, Inc., No. 14-cv-60256-BB, 2014 WL 4755219,
at *1 (S.D. Fla. Sept. 23, 2014); see also Polite v. Dougherty Cnty. Sch. Sys., 314 Fed. App’x 180, 184 n.7
(11th Cir.2008) (Rule 12(f) applies only to “pleadings”). 	The Notice does not fall into one of the
enumerated categories of pleadings listed in Federal Rule of Civil Procedure 7(a) and thus is not a
“pleading” subject to Federal Rule of Civil Procedure 12(f). See FED . R. C IV . P. 7(a). Accordingly, we
decline to strike the Notice.
III. 	Remand to State Court
Plaintiff’s alternative request for remand is well taken. 	Because this cause involves neither
diversity of citizenship nor a federal question, there is no federal jurisdiction.
“Federal courts are courts of limited subject-matter jurisdiction,” Hensley v. Hartford Cas. Ins.
Co., 113 F.4th 1327, 1332 (11th Cir. 2024) (citation omitted), and so have an independent obligation
to determine whether subject-matter jurisdiction exists. See Cadet v. Bulger, 377 F.3d 1173, 1179 (11th
Cir. 2004); Alfassi v. Garland, 614 F. Supp. 3d 1252, 1254 (S.D. Fla. 2022). “A district court can hear a
case only if it has at least one of three types of subject matter jurisdiction: (1) jurisdiction under a
specific statutory grant; (2) federal-question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a).” Hensley, 113 F.4th at 1332 (citation omitted). 	As to
federal-question jurisdiction, “[t]he presence or absence of federal-question jurisdiction is governed
by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.” 	Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Where, as here, a case was removed to federal court, “[i]f at any
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time before final judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c). “This provision is mandatory and may not be disregarded
based on speculation about the proceeding’s futility in state court.” Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 410 (11th Cir. 1999).
The Notice reads: “[t]his Court maintains federal-question jurisdiction under 28 U.S.C. § 1441
and 28 U.S.C. § 1331 as this action contains claims made pursuant to 15 U.S.C. §[ ]1692a, et. seq.[,]
Federal Debt Collection Practices Act.”3 [ECF No. 1 at 2]. But the Complaint lacks any information
from which one may infer federal jurisdiction. 	See [ECF No. 1-2]. 	Plaintiff argues that “[f]ederal-
question jurisdiction must appear on the face of the well-pleaded Complaint[,]” and that it is improper
for Defendants to assert federal-question jurisdiction based on allegations made within the Notice.
[ECF No. 5 at 9]. That is correct. Federal-question jurisdiction must arise from the complaint, not a
removal notice. Caterpillar Inc., 482 U.S. at 392. In Caterpillar, the Supreme Court held that “a defendant
cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law
claim, transform the action into one arising under federal law, thereby selecting the forum in which
the claim shall be litigated.” Id. at 399 (emphasis in original). Plaintiff’s Complaint presents no federal
question regarding the Federal Debt Collection Practices Act. See [ECF No. 1-2 at 1–26]. Without
federal-question jurisdiction—and, thereby, subject matter jurisdiction—this Court must remand this
matter to state court. 	28 U.S.C. § 1447(c). 	Because remand is required on this basis, we need not
address Plaintiff’s remaining reasons.
3 Although Plaintiff devotes a significant portion of its Motion to arguing that diversity jurisdiction is also not
present, the Notice never claims to rely upon diversity jurisdiction. Compare [ECF No. 5 at 9-10], with [ECF
No. 1 at 2].
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IV. 	Sanctions and Fees
The Motion contains a lengthy section requesting that this Court impose sanctions upon
Defendants under Federal Rule of Civil Procedure 11. 	See [ECF No. 5 at 13–15]. 	This is facially
improper. Rule 11 clearly states, in relevant part:
(2) Motion for Sanctions. A motion for sanctions must be made separately
from any other motion and must describe the specific conduct that
allegedly violates Rule 11(b). The motion must be served under Rule
5, but it must not be filed or be presented to the court if the challenged
paper, 	claim, 	defense, 	contention, 	or 	denial 	is 	withdrawn 	or
appropriately corrected within 21 days after service or within another
time the court sets. If warranted, the court may award to the prevailing
party the reasonable expenses, including attorney’s fees, incurred for
the motion.
FED . R. C IV . P. 11(c)(2). “[T]he procedural requirements of Rule 11 are strictly construed.” Galicia v.
Elaselin, Inc., No. 24-cv-21003-JEM, 2025 WL 4750623, at *2 (S.D. Fla. Aug. 5, 2025) (alteration in
original) (quoting Robinson v. Alutiq-Mele, LLC, 643 F. Supp. 2d 1342, 1350 (S.D. Fla. 2009)), report and
recommendation adopted, No. 24-cv-21003-JEM, 2025 WL 4750615 (S.D. Fla. Aug. 20, 2025). The fact
that Plaintiff’s Rule 11 sanctions request is not “made separately from any other motion” is, on its
own, disqualifying. Id. See also FED . R. C IV . P. 11(c)(2). But the request fails for a second reason. Rule
11 imposes a “safe harbor,” which means that the moving party must serve the sanctions motion on
the nonmovant and give them at least 21 days to correct the offending filing. 	Galicia, 2025 WL
4750623, at *1–2. “Failure to comply with Rule 11’s safe harbor provision demands the denial of a
Rule 11 motion.” Id. at *2. There is also no indication that Plaintiff satisfied Rule 11’s safe harbor
provision, which is an independent reason to deny sanctions.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:
1. 	The Motion, [ECF No. 5], is GRANTED in part and DENIED in part without
prejudice for the reasons stated herein.
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2. 	The Motion is DENIED with respect to Plaintiff’s request to strike Defendant Yaysi Zoila
Padron’s Notice of Removal, [ECF No. 1].
3. 	The Motion is GRANTED with respect to Plaintiff’s request, in the alternative, to remand
the instant cause to state court. The Clerk of Court is directed to REMAND this cause
to the Circuit Court for the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida. 	The Clerk of Court is further directed to CLOSE the instant cause in the
Southern District of Florida. 	Each party shall bear their own costs and attorneys’ fees
incurred in connection with the removal of this action and other proceedings in this Court.
4. 	The Motion is DENIED with respect to Plaintiff’s improper motion for sanctions
pursuant to Federal Rule of Civil Procedure 11(c).
DONE AND ORDERED in the Southern District of Florida on October 14, 2026.
_________________________________
YENEY HERNANDEZ
UNITED STATES MAGISTRATE JUDGE
cc: 	Counsel of record
Pro se Defendant Yaysi Zoila Padron
5721 SW 62 Terrace
Miami, FL 33143
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