Opinion
Civil Action No. 6:19-1242-HMH-KFM
05-01-2019
Bank of America NA, Plaintiff, v. Robert E. Pressley, Reedy Springs Homeowners Association, Defendants.
REPORT OF MAGISTRATE JUDGE
Defendant Robert E. Pressley ("Pressley"), proceeding pro se and in forma pauperis, removed the present action from the Greenville County Court of Common Pleas (doc. 1), asserting a claim here alleging a federal question arises from a foreclosure action against him. The docket number for the state court action was Case No. 2018-CP-23-05737 (id.). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
BACKGROUND
This case arises from a state foreclosure action (2018-CP-23-05737) filed against Pressley by the plaintiff, Bank of America NA. The court takes judicial notice of the underlying case file in the Greenville County Court of Common Pleas. See Bank of America NA v. Pressley et al., No. 2018-CP-23-05737, Greenville County Public Index, https://www2.greenvillecounty.org/SCJD/PublicIndex/PISearch.aspx (enter Pressley's name and 2018-CP-23-05737) (last visited April 30, 2019). In the underlying case, an Order of Foreclosure was issued on April 3, 2019. Id. A judicial sale of the property is currently set for May 6, 2019 (doc. 1-1 at 3-4). On April 29, 2019, Pressley filed his notice of removal of the action from the state court, alleging the foreclosure proceedings occurred in violation of the Fair Debt Collection Practices Act ("FDCPA") (doc. 1). Pressley maintains that these alleged violations give rise to federal jurisdiction, thus, making this action removable. The undersigned disagrees.
Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that '[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'").
STANDARD OF REVIEW
As a pro se litigant, Pressley's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction, however, does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
Subject Matter Jurisdiction
Pressley removed the present action to this court based upon federal question jurisdiction (doc. 1). "The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R. Civ. P. 41(b)). Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, "and to dismiss the action if no such ground appears." Bulldog Trucking, 147 F.3d at 352; see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). Federal question jurisdiction, as alleged herein, arises when the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. In his notice of removal, Pressley alleges that federal question jurisdiction exists over this foreclosure action because this case involves violations of the FDCPA (see doc. 1). Nevertheless, the cause of action in the Greenville County Court of Common Pleas—foreclosure of a real estate mortgage—is a state law cause of action. See United States v. Chatman, C/A No. 4:17-1556-RBH-KDW, 2017 WL 3704832, at *3 (D.S.C. July 28, 2017), Report and Recommendation adopted by 2017 WL 3676587 (D.S.C. Aug. 25, 2017), appeal dismissed sub nom. United States through Rural Hous. Serv. v. Montgomery, 716 F. App'x 204 (4th Cir. 2018). The removal documents show that the underlying state court action does not involve claims arising under the Constitution or federal laws (nor do the documents indicate that the claims depend on the resolution of a substantial question of federal law) (doc. 1-1). See CitiMortgage, Inc. v. Corbitt, C/A No. 5:15-100-JMC, 2015 WL 545336, at *3 (D.S.C. Feb. 10, 2015) (finding no federal subject matter jruisdiction in state foreclosure action and remanding to state court), Nationstar Mortg.LLC v. Hall, C/A No. 3:17-1499-JFA-PJG, 2017 WL 3037474, at *3 (D.S.C. June 15, 2017), Report and Recommendation adopted by 2017 WL 3026074 (D.S.C. July 17, 2017), appeal dismissed, 707 F. App'x 173 (4th Cir. 2017) (remanding, sua sponte, foreclosure action for lack of subject matter jurisdiction); JP Morgan Chase Bank, Nat'l Ass'n v. Hayes, C/A No. 3:13-731-JFA, 2013 WL 2407121 (D.S.C. June 3, 2013) (remanding state foreclosure action for lack of federal subject matter jurisdiction).
Moreover, Pressley has not manufactured federal question jurisdiction in the present matter by referencing the FDCPA. See Gully v. First Nat'l Bank, 299 U.S. 109, 113 (1936) (noting the basis of federal question jurisdiction must be "disclosed upon the face of the complaint, unaided by the answer or by the petition for removal"); In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006) (noting that "actions in which [state court] defendants merely claim a substantive federal defense to a state law claim do not raise a federal question"). Accordingly, this court lacks subject matter jurisdiction to accept removal from the state court to consider Pressley's FDCPA claims, and the case should be remanded, sua sponte.
RECOMMENDATION
Accordingly, it is recommended that the District Court sua sponte REMAND this case to the Greenville County Court of Common Pleas for lack of subject matter jurisdiction. Pressley's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge May 1, 2019
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).