HOPER v. DESANTIS et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
MARCUS HOPER, SR.,
Plaintiff,
v. 	Case No. 4:26-cv-108-MW/MJF
RON DESANTIS, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
This case originated in the Circuit Court of the Second Judicial
Circuit in and for Leon County, Florida, Case No. “2016-DR-002081 /
2025-CC-4170.” Doc. 1 at 1. On March 2, 2026, Plaintiff, proceeding pro
se, filed a notice of removal pursuant to 28 U.S.C. § 1441(a). Id. This is
Plaintiff’s second attempt to remove this civil action that he filed in state
court. See Hoper v. Desantis, No. 4:26-cv-70-RH-MAF, ECF No. 10, Order
of Remand (N.D. Fla. Mar. 16, 2026). Because Plaintiff failed to pay the
filing fee upon removal, and because section 1441(a) does not authorize
Plaintiff to remove civil actions to federal court, the District Court should
remand this case to the Florida court in which it originated.
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D ISCUSSION
A. 	Plaintiff Failed to Pay the Filing Fee
The Local Rules require that a party who removes a civil action
simultaneously pay the filing fee or file a motion for leave to proceed in
forma pauperis. 	N.D. Fla. Loc. R. 5.3. 	Plaintiff violated this Rule. For
this reason alone, the District Court should remand this civil action to
the state court from which Plaintiff removed it.
B. 	A Plaintiff Cannot Remove a Civil Action under § 1441
The general removal statute, 28 U.S.C. § 1441, provides in relevant
part:
[A]ny civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district
court 	of 	the 	United 	States 	for 	the 	district 	and 	division
embracing the place where such action is pending.
28 U.S.C. § 1441(a) (emphasis added). The plain language of this statute
provides defendants a right of removal, not plaintiffs. 28 U.S.C. § 1441(a);
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106–07 (1941);
F.D.I.C. v. S & I 85-1, Ltd., 22 F.3d 1070, 1072 (11th Cir. 1994); Oregon
Egg Producers v. Andrew, 458 F.2d 382, 383 (9th Cir. 1972).
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Plaintiff initially had the option to file this case in federal or state
court. He chose to file it in a Florida court. He cannot now switch to a
federal forum through removal. See Chicago R.I. & P.I. Co. v. Stude, 346
U.S. 574, 580 (1954); Valencia v. Allstate Texas Lloyd’s, 976 F.3d 593,
595, 597 (5th Cir. 2020); Oregon Egg Producers, 458 F.2d at 383.
Because Section 1441(a) does not authorize Plaintiff to remove this
case to a federal court, this case should be remanded to the Circuit Court
of the Second Judicial Circuit in and for Leon County, Florida.
CONCLUSION
Because Plaintiff failed to pay the filing fee, and because § 1441(a)
does not authorize a plaintiff to remove a civil action to a federal court,
the undersigned respectfully RECOMMENDS that the District Court:
1. 	REMAND this civil action to the Circuit Court of the Second
Judicial Circuit in and for Leon County, Florida.
2. 	DIRECT the clerk of the court to close the case file.
At Pensacola, Florida, this 17th day of March 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
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NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge 	to 	address 	preliminary 	matters 	and to 	make
recommendations regarding dispositive matters. See
N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b); Fed R.
Civ. P. 72(b). Objections to this R&R must be filed
within fourteen days of the date of the report and
recommendation. An objecting party must serve a copy
of its objections upon all other parties. A party who
fails to object to the magistrate judge’s findings or
recommendations 	contained 	in 	a 	report 	and
recommendation 	waives 	the 	right 	to 	challenge 	on
appeal the District Court’s order based on unobjected-
to factual and legal conclusions. See 11th Cir. Rule 3-1;
28 U.S.C. § 636. The parties also are advised that if they
dispute the accuracy of any facts taken from judicially-
noticed documents, or if they otherwise wish to be
heard on the propriety of the court taking judicial
notice of those facts, they must raise this issue in an
objection to this report and recommendation.
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