Opinion
C. A. 8:23-cv-05128-JD-KFM
11-08-2023
Rocket Mortgage LLC, Plaintiff, v. Brittany N. Clark[1], Brandon Clark, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
Defendant Brittany N. Clark, proceeding pro se and in forma pauperis, removed the present action from the Anderson County Court of Common Pleas (doc. 1). The docket number for the underlying action was Case No. 2023-CP-04-02142 (doc. 1-1 at 1). This matter is before the court on a motion to remand filed by the plaintiff (doc. 11). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (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.
PROCEDURAL HISTORY
This case arises from a foreclosure action filed by the plaintiff on October 11, 2023, in the Anderson County Court of Common Pleas regarding property located at 918 Firetower Road, Williamston, South Carolina (“the Subject Property”) (2023-CP-04-02142) (docs. 1; 1-1). On October 13, 2023, defendant Brittany N. Clark's notice of removal was filed in this court (doc. 1). Her notice of removal asserts federal question jurisdiction based on federal regulations and federal statutes (id.). On October 27, 2023, the plaintiff filed a motion seeking to remand the instant matter to the Anderson County Court of Common Pleas (doc. 11). On November 3, 2023, defendant Brittany N. Clark filed a response to the plaintiff's motion (doc. 13). As such, the motion is now ripe for review.
APPLICABLE LAW & ANALYSIS
As noted above, the plaintiff has moved to remand this action to the Anderson County Court of Common Pleas (doc. 11). Under 28 U.S.C. § 1441(a), “a 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.” The burden of demonstrating jurisdiction - and the propriety of removal, however, rests with the removing party. See Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815 (4th Cir. 2004). Here, the plaintiff asserts that defendant Brittany N. Clark's removal is improper because the court does not have subject matter jurisdiction over the instant matter. The plaintiff also requests attorney's fees and costs for responding to defendant Brittany N. Clark's notice of removal (doc. 11 at 4).
As an initial matter, the plaintiff argues that this matter should be remanded because defendant Brittany N. Clark's notice of removal does not reflect that the other defendant in this action, Brandon Clark, joined in or consented to the removal of this action (doc. 11 at 4). Pursuant to 28 U.S.C. § 1446(b)(2)(A), when a civil action is removed based upon diversity jurisdiction all “defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). Here, the record indicates that defendant Brandon Clark was served on October 24, 2023 (doc. 11-1); however, defendant Brittany N. Clark's notice of removal was filed with this court on October 13, 2023 (doc. 1), meaning that it is not clear that defendant Brandon Clark's consent was required for defendant Brittany N. Clark's removal because he had not yet been properly served when the notice of removal was filed. As such, the plaintiff's motion to remand based on procedural defects in the notice of removal should be denied. Nevertheless, as set forth below, the plaintiff's motion should be granted based on a lack of subject matter jurisdiction.
Subject Matter Jurisdiction
Federal Question Jurisdiction
In determining federal question jurisdiction, as asserted in defendant Brittany N. Clark's notice of removal, the complaint controls. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); 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”). Here, as noted, the plaintiff initiated the Foreclosure Action by filing a complaint seeking to foreclose on the mortgage for the Subject Property in the Anderson County Court of Common Pleas. See Anderson County Public Index, https://publicindex.sccourts.org/Anderson/PublicIndex/PISearch.aspx (enter 2023CP0402142) (last visited November 7, 2023). As courts have noted, “[n]o question of federal law is implicated by the properly pleaded notice of foreclosure. Thus, federal [question] jurisdiction does not exist.” Rogers Townsend & Thomas, PC v. Boehm, C/A No. 1:12-cv-00163, 2012 WL 3155581, at *2 (W.D. N.C. Aug. 2, 2012); see Arnold v. Waterfield Mort. Co., 966 F.Supp. 387, 389 (D. Md. 1996), aff'd 116 F.3d 472 (4th Cir. 1997) (recognizing that federal courts do not interfere in state court foreclosure proceedings). Defendant Brittany N. Clark's notice of removal and related documents mention various federal laws in asserting that the foreclosure is improper; however, affirmative defenses based on federal law are not a basis for removal. In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006), cert. denied549 U.S. 1260 (2007) (noting that “actions in which defendants merely claim a substantive federal defense to a state-law claim do not raise a federal question.”). As such, federal question jurisdiction does not provide a basis for removal of the foreclosure action to this court.
Diversity Jurisdiction
Although defendant Brittany N. Clark's notice of removal does not specify diversity jurisdiction, the plaintiff also moves to remand this action because the court lacks diversity jurisdiction (doc. 11 at 3-4). Diversity jurisdiction is conferred upon the court when a suit is between citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). “With the exception of certain class actions, Section 1332 requires complete diversity among parties, meaning that the citizenship of every plaintiff must be different from the citizenship of every defendant.” Central W.Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011) (footnote omitted). Citizenship for purposes of diversity jurisdiction “depends on the citizenship of the parties at the time suit is filed.” Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003). An individual is a citizen of the state in which he or she is domiciled. Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008). A corporation, for jurisdiction purposes, is a citizen of the state(s) in which it has been incorporated as well as the state(s) where it has its principal place of business. Cent. W.Va. Energy Co. v. Mountain State Carbon, LLC, 535 F.3d 101, 102 (4th Cir. 2011). However, a case may not be removed based upon diversity jurisdiction “if any of the parties in interest properly joined and served as defendants [are citizens] of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). Here, both defendants are citizens of the state of South Carolina (docs. 1 at 2; 1-1 at 2). As such, the court also lacks diversity jurisdiction and this matter should be remanded.
Accordingly, because the court lacks federal question or diversity jurisdiction over this action, it is recommended that the plaintiff's motion to remand (doc. 11) be granted and the instant matter be remanded to the Anderson County Court of Common Pleas.
Fees and Costs
As noted above, pursuant to 28 U.S.C. § 1447(c), the plaintiff seeks an award of attorney's fees and costs for appearing in this action and for having to respond to defendant Brittany N. Clark's notice of removal (doc. 11 at 4). “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005) (internal citation omitted). Here, as outlined above, defendant Brittany N. Clark did not have an objectively reasonable basis for seeking removal. For example, she has removed another case to this court relying on similar federal regulations - and remand was recommended in that action before the notice of removal was filed in the instant action. See World Omni Fin. Corp. v. Clark, C/A No. 8:23-cv-04586-JD, at doc. 28 (D.S.C. Oct. 5, 2023) (pending report and recommendation recommending remand). Further, defendant Brittany N. Clark's arguments in removing this matter appear based on her assertion that she has a special status as a “Moorish-American.” Individuals, such as defendant Brittany N. Clark, who identify as Moorish-American, often append or substitute the words El, Ali, or Bey “to their last names to signify their claimed Moorish ancestry.” El-Bey v. City of Greensboro, C/A No. 1:10-cv-00572, 2011 WL 4499168, at *1 n.1 (M.D. N.C. Sept. 27, 2011), Report and Recommendation adopted as modified by 2012 WL 13064405 (M.D. N.C. Mar. 21, 2012), aff'd, 539 Fed.Appx. 312 (4th Cir. 2013). However, such allegations of a special status on this basis have been thoroughly discredited and noted as patently frivolous. See Hemingway-EL v. City of High Point, C/A No. 1:09-cv-00711,2012 WL 1313312, at *2 (M.D. N.C. Apr. 17, 2012) (collecting cases rejecting claims based upon special status with a “Moorish group”), Report and Recommendation adopted by 2012 WL 1867113 (M.D. N.C. May 22, 2012). Indeed, as recognized by the Honorable Thomas D. Schroeder, United States District Judge for the Middle District of North Carolina, the individuals identifying as Moorish Americans are “the most recent incarnation of a notorious organization of scofflaws and ne'er-do-wells who attempt to benefit from the protections of federal and state law while simultaneously proclaiming their independence from and total lack of responsibility under those same laws.” U.S. v. $7,000.00 in U.S. Currency, 583 F.Supp.2d 725, 732 (M.D. N.C. 2008) (collecting cases finding as frivolous, baseless, fantastical, and delusional, the claims of individuals identifying as part of Moorish groups). As such, the undersigned finds that the removal of the instant matter by defendant Brittany N. Clark was frivolous and unreasonable; thus, the plaintiff's request for fees and costs for responding to the notice of removal should be granted.
RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS HEREBY RECOMMENDED that the plaintiff's motion to remand (doc. 11) be granted. IT IS FURTHER RECOMMENDED that the plaintiff's request for fees and costs be granted. Should the United States district Judge assigned to this case adopt this recommendation, it is recommended that the plaintiff be directed to submit to the Court a detailed invoice setting forth its fees and costs for appearing in this court and responding to defendant Brittany N. Clark's notice of removal. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 250 East North Street, Room 2300 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).