3:25-cv-02511•ARCE v. ARCE
Gesamter Gesetzestext
Page 1 of 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION JENNIFER LYNN ARCE, Plaintiff, v. Case No. 3:25cv2511-MCR-HTC ARMANDO ARCE, Defendant. ________________________/ ORDER and REPORT AND RECOMMENDATION Armando Arce, proceeding pro se, has filed a notice of removal and a memorandum in support, seeking to remove an action for a domestic violence injunction from state to federal court. Docs. 1 & 7. Arce also filed a motion to disqualify the undersigned.1 Doc. 6. Upon consideration, the motion to disqualify will be DENIED. In addition, after reviewing the notice of removal and the state court proceedings, the undersigned concludes Arce has not established the Court has subject matter jurisdiction. Thus, this case should be REMANDED to state court. 1 Arce also filed a motion to proceed in forma pauperis (Doc. 2) and then subsequently paid the full filing fee. Thus, the clerk shall terminate that motion as moot. His motion to proceed in forma pauperis as to costs (Doc. 9) shall also be terminated as moot since this matter should be remanded to state court. Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 1 of 11
Page 2 of 11 Case No. 3:25cv2511-MCR-HTC I. Background On August 2, 2023, Jennifer Lynn Arce (“Jennifer”) filed a petition for injunction for protection against domestic violence against Arce. Doc. 1 at 7-16; Arce v. Arce, Okaloosa County Case No. 2023 DR 2903. On August 15, 2023, Judge David Oberliesen entered a final judgment of injunction against Arce and in favor of Jennifer. Doc. 1 at 17-27. Arce maintains he has continuously challenged the injunction as jurisdictionally void. He says the injunction is void because Judge Oberliesen used Fla. Stat. § 784.03 (the criminal statute for battery) as the predicate act rather than Fla. Stat. § 741.28 (the civil statute defining “domestic violence” for purposes of injunctions under Chapter 741). On December 5, 2025, Judge Jennie Kinsey denied Arce’s emergency motion for dissolution of the injunction. On December 8, 2025, Arce filed a notice of removal to try to remove the state court action to federal court. Doc. 1. II. Arce has not established a basis for disqualification. As an initial matter, Arce has moved to disqualify me from hearing this case. Doc. 6. Under 28 U.S.C. § 455(a) a judge should recuse herself in any proceeding in which her impartiality might reasonably questioned. “The test is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 2 of 11
Page 3 of 11 Case No. 3:25cv2511-MCR-HTC judge’s impartiality.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988). In addition, a judge should recuse herself when she has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. 28 U.S.C. § 455(b)(1). After reviewing Arce’s motion and the relevant law, I conclude he has not established a basis for disqualification. Arce first claims my impartiality might reasonably be questioned because I was assigned to a case he filed in June 2021 against Secretary of Education Miguel Cardona, and I issued a report recommending that Cardona’s motion to dismiss be granted. See Arce v. Cardona, N.D. Fla. Case No. 3:21cv833-MCR-HTC. Arce notes the Department of Education sent him a $1,000 federal student loan refund check on December 3, 2025, and argues his receipt of that check shows my recommendation in the Cardona case was incorrect. However, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994); Springer v. Wells Fargo Bank, N.A., 784 F. App’x 721, 724 (11th Cir. 2019) (“Ordinarily, a judge’s rulings in the same or a related matter may not serve as the basis for a motion to recuse.”) (citation omitted). Instead, “[t]he judge’s bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case.” McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990). Because Arce’s only basis for arguing my Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 3 of 11
Page 4 of 11 Case No. 3:25cv2511-MCR-HTC impartiality might reasonably questioned is the unfavorable recommendation I made in his prior case, he has not shown recusal is required under § 455(a). See Springer, 784 F. App’x at 724 (“Although [the magistrate judge] recommended dismissal of two of Mr. Springer’s prior cases and Mr. Springer filed a judicial inquiry against him, this was not enough to raise a substantial doubt about his impartiality.”). Next, Arce alleges my involvement with the Cardona case caused me to acquire personal knowledge of disputed facts that may be relevant to this proceeding. He claims, “[t]he present case involves issues arising from the same pattern of governmental conduct that [he] challenged in the Cardona case—specifically, federal funding mechanisms and their interaction with state court proceedings.” Doc. 6 at 3. However, in the Cardona case, Arce alleged the Secretary of Education improperly disclosed his personal information and negatively influenced his credit reports. Those claims are not related to the petition for a domestic violence injunction that Jennifer brought against Arce. Moreover, as the caselaw makes clear, the personal knowledge referenced in § 455(b) must come from an extrajudicial source. See Wood v. Frederick, 2022 WL 1742953, at *5 (11th Cir. May 31, 2022) (“the judge’s personal knowledge of the disputed evidentiary fact must have been gained extrajudicially”) (citing United States v. Bailey, 175 F.3d 966, 969 (11th Cir. 1999)). Thus, any knowledge I acquired during my involvement with the Cardona Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 4 of 11
Page 5 of 11 Case No. 3:25cv2511-MCR-HTC case would not provide a basis for recusal, and I have no extrajudicial knowledge regarding the relationship between Jennifer and Arce, or of the proceedings involving them. Based on the foregoing, Arce has not demonstrated that my recusal is required; his motion will be denied. See United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986) (“[A] judge, having been assigned to a case, should not recuse [herself] on unsupported, irrational, or highly tenuous speculation.”). III. Arce has not established the Court has subject matter jurisdiction over the removed state court action. Arce argues removal of the action for a domestic violence injunction from state to federal court is proper: (1) under 28 U.S.C. § 1443, the civil rights removal statute; and (2) because the action presents a federal question. However, as will be explained below, neither of these arguments has merit. Thus, because Arce has not demonstrated this Court has subject matter jurisdiction over Jennifer’s petition, this case must be remanded to state court. See Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002) (“A removing defendant bears the burden of proving proper federal jurisdiction.”); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (noting courts “have an independent obligation to determine whether subject- matter jurisdiction exists, even in the absence of a challenge from any party”). Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 5 of 11
Page 6 of 11 Case No. 3:25cv2511-MCR-HTC A. The civil rights removal statute does not provide a basis for jurisdiction. Arce first argues the Court has subject matter jurisdiction under the civil rights removal statute, 28 U.S.C. § 1443(1). To remove a case under § 1443(1), the removal petition must show: (1) “the right upon which the petitioner relies arises under a federal law ‘providing for specific civil rights stated in terms of racial equality’”; and (2) the petitioner “has been denied or cannot enforce that right in the state courts.” Alabama v. Conley, 245 F.3d 1292, 1295 (11th Cir. 2001) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). In his notice of removal, Arce claims he is being denied: (1) procedural due process based on the entry and enforcement of a jurisdictionally void injunction; (2) substantive due process based on the deprivation of his parental rights; (3) equal protection through disparate application of domestic violence statutes; and (4) access to the courts through coordinated recusals, procedural obstacles, and refusal to address jurisdictional challenges. He adds that he cannot enforce his constitutional rights in state court because “the state judiciary has demonstrably refused to address the fundamental jurisdictional defect underlying the challenged injunction, instead engaging in a pattern of procedural maneuvers designed to insulate the void order from constitutional review.” Doc. 1 at 2. Arce’s notice of removal is not predicated on a federal law providing for specific civil rights stated in terms of racial equality. The laws he relies on—the Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 6 of 11
Page 7 of 11 Case No. 3:25cv2511-MCR-HTC First Amendment, the Privileges and Immunities Clause,2 the Due Process Clause, and the Equal Protection Clause—are broad constitutional guarantees of general application which courts have held are not sufficient to support removal under § 1443. See Rachel, 384 U.S. at 792 (“[T]he defendants’ broad contentions under the First Amendment and the Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under s 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that s 1443 demands.”); Miller v. Lambeth, 443 F.3d 757, 761 (10th Cir. 2006) (the “Privileges and Immunities Clauses of the United States Constitution” are “federal laws of general applicability, which are not sufficient to qualify for removal under § 1443(1)”); Conley, 245 F.3d at 1295-96 (“[T]o the extent Conley relies upon broad assertions under the Equal Protection Clause or § 1983, those rights are insufficient to support a valid claim for removal under § 1443(1).”). And there is nothing in the record to indicate Arce was deprived of any right in the underlying state court proceeding based on his race. See Cave v. Florida, 814 F. App’x 555, 557 (11th Cir. 2020) (holding remand was proper because defendant “did not properly assert reliance on any specific civil right under federal law ‘stated 2 Access to the courts is a constitutional right “grounded in the First Amendment, the Article IV Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment.” Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003). Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 7 of 11
Page 8 of 11 Case No. 3:25cv2511-MCR-HTC in terms of racial equality’ – indeed, neither her Notice of Removal nor appeal mention her race or make any assertions of race-based discrimination”). Nor has he identified any state law which authorizes the denial of his civil rights. See Alabama v. Thomason, 687 F. App’x 874, 878 (11th Cir. 2017) (stating “in the paradigmatic case, removal is proper [under § 1443] where a facially discriminatory state law authorizes the denial of the defendant’s civil rights”). Lastly, Arce’s memorandum in support of his notice of removal alleges various state actors have violated 42 U.S.C. § 1985(3) by conspiring to deprive him of his rights. However, the alleged conspiracy was not motivated by his membership in an identifiable group; instead, he suggests the conspirators had a financial motive. Thus, none of Arce’s allegations suggest his rights under § 1985(3) have been violated in the state court action. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (a § 1985 claim requires “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action”); White v. Berger, 709 F. App’x 532, 538 (11th Cir. 2017) (Section 1985 “protects individuals from conspiracies to harm them motivated by their membership in classes having common characteristics of an inherent nature—i.e., those kinds of classes offered special protection under the equal protection clause.”). Based on the foregoing, Arce cannot remove the petition for domestic violence injunction to federal court under § 1443. Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 8 of 11
Page 9 of 11 Case No. 3:25cv2511-MCR-HTC B. Jennifer’s petition for a domestic violence injunction does not present a federal question.3 Arce next claims the Court has federal question jurisdiction over the state court action. He alleges the action presents the following federal questions: (1) “whether a state court order entered without subject matter jurisdiction violates the Due Process Clause”; (2) “whether the application of an incorrect statutory predicate (criminal vs. civil) renders a domestic violence injunction void ab initio”; and (3) “whether systematic judicial coordination to prevent constitutional review of jurisdictional defects constitutes a deprivation of civil rights under color of state law.” Doc. 1 at 3. Arce also alleges he wants to bring claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, 18 U.S.C. § 1001, and the False Claims Act. Doc. 7 at 6. However, for purposes of removal, the Court only looks to Jennifer’s petition for a domestic violence injunction and considers whether it presents a federal question. See Blab T.V. of Mobile, Inc. v. Comcast Cable Commc’ns, Inc., 182 F.3d 851, 854 (11th Cir. 1999) (“A case … may be removed based on federal question jurisdiction ‘only when the plaintiff’s statement of his own cause of action shows that it is based’ on federal law.”) (quoting Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908)). And it does not. An action seeking a domestic violence 3 Arce could not invoke the Court’s diversity jurisdiction because he is a Florida resident. See 28 U.S.C. § 1441(b)(2) (stating a defendant cannot remove a civil action based on diversity jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought”). Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 9 of 11
Page 10 of 11 Case No. 3:25cv2511-MCR-HTC injunction is a cause of action created by Florida law, and nothing in the petition (Doc. 1 at 7-16) alleges a violation of federal law. See Fla. Stat. § 741.30(1) (“There is created a cause of action for an injunction for protection against domestic violence.”). The federal questions Arce claims the case presents are all related to Arce’s belief that the state court proceedings have violated his rights under federal law. But federal question jurisdiction cannot be premised on federal defenses that could be raised in response to the claims in state court. Cf. Newton v. Capital Assurance Co., Inc., 245 F.3d 1306, 1309 (11th Cir. 2001) (“The federal cause of action or question of federal law must be apparent from the face of the well-pleaded complaint and not from a defense or anticipated defense.”). Furthermore, Arce’s attempt to raise claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, 18 U.S.C. § 1001, and the False Claims Act are not sufficient to establish jurisdiction because the Court cannot consider counterclaims when determining whether removal is proper. See Home Depot U.S.A., Inc. v. Jackson, 587 U.S. 435, 442 (2019) (“Section 1441(a) thus does not permit removal based on counterclaims at all, as a counterclaim is irrelevant to whether the district court had ‘original jurisdiction’ over the civil action.”). Based on the foregoing, the Court does not have subject matter jurisdiction over this case, and it must be remanded to state court. See Dickey v. Ardis, 2018 WL 1100902, at *2 (N.D. Fla. Jan. 31, 2018), report and recommendation adopted, (N.D. Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 10 of 11
Page 11 of 11 Case No. 3:25cv2511-MCR-HTC Fla. Feb. 28, 2018) (concluding petition for domestic violence injunction did not present federal question and remanding case to state court). Accordingly, it is ORDERED: 1. Arce’s motions to proceed in forma pauperis (Docs. 2 & 9) are TERMINATED as moot. 2. Arce’s motion to disqualify (Doc. 6) is DENIED. And it is RECOMMENDED: 1. That Okaloosa County Case No. 2023 DR 2903 be REMANDED to the state court from which it was removed because this Court lacks subject matter jurisdiction over the state court action. 2. That the clerk close the file. At Pensacola, Florida, this 11 th day of December, 2025. /s/ Hope Thai Cannon HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE NOTICE TO THE PARTIES Objections to these proposed findings and recommendations must be filed within fourteen (14) days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court’s internal use only and does not control. 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 the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1. Case 3:25-cv-02511-MCR-HTC Document 11 Filed 12/11/25 Page 11 of 11
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