Opinion
C/A 6:23-cv-03537-DCC-JDA
08-24-2023
Tinsley Real Estate, Plaintiff, v. Lonnie Hudgens, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge.
Lonnie Hudgens (“Defendant”), proceeding pro se and in forma pauperis, files this action purportedly to remove from the Greenville County magistrate court to this Court an eviction proceeding that was commenced by Tinsley Real Estate (“Plaintiff”). This matter is before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C. Having reviewed the pleadings filed in this action in accordance with applicable law, the Court concludes that this action should be summarily remanded to the state court.
In the caption of the notice of removal filed in this Court, Hudgens identifies herself as the “Petitioner” and Tinsley Real Estate as the “Respondent.” [Doc. 1 at 1.] However, Hudgens is identified as the Defendant and Tinsley Real Estate is identified as the Plaintiff in the underlying state court action that forms the basis for this removal action. As such, the Court refers to Hudgens as “Defendant.”
BACKGROUND
This matter arises from a state court eviction action, case number 2023CV2311002535, filed in the Summary Court in Greenville County, South Carolina. [Doc. 1.] Defendant commenced the present action by filing a “Petition for Removal and Federal Stay of Eviction Pursuant to 28 USC 1441 (B)” (hereinafter, the “Petition”), which is construed as a notice of removal. [Id.] Defendant alleges that Plaintiff is attempting to collect a debt in violation of the Fair Debt Collection Practices Act of 1978 (“FDCPA”) and that the state court action constitutes an unlawful eviction proceeding in violation of the Uniform Commercial Code (“UCC”), 15 U.S.C. § 1692. [Id. at 1-2.] Based on these allegations, Defendant contends that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a), and that removal is proper under 28 U.S.C. § 1441(b). [Id.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Petition. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) D.S.C., the undersigned Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the District Court. Further, Defendant filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Because Defendant is a pro se litigant, her Petition is accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, the pro se Petition is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the Court can reasonably read the pleadings to state a valid claim on which Defendant could prevail, it should do so, but the Court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Petitioner's legal arguments for her, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction 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).
Further, this Court possesses the inherent authority to review pro se pleadings to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the complaint were not subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.”) (citations omitted); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006) (“[C]ourts . . . have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”).
DISCUSSION
Defendant purports to remove to this Court an eviction proceeding pending in the state court. For the reasons below, this case is subject to summary remand.
Improper Removal
As an initial matter, the undersigned notes that Defendant failed to properly remove this action from the state court. In removing a case from state to federal court, the removing party must comply with the removal statute, which provides:
A defendant . . . desiring to remove any civil action from a State court shall file . . . a notice of removal . . . together with a copy of all process, pleadings, and orders served upon such defendant . . . in such action.28 U.S.C. § 1446(a).
Here, Defendant did not file a copy of the state court pleadings. Indeed, by Order dated July 24, 2023, the undersigned instructed Defendant to “[f]ile a copy of ALL process, pleadings (including the Complaint), and orders served upon Defendant in the underlying state court action.” [Doc. 6 at 2.] However, Defendant failed to comply with the Court's Order. As such, this action should be dismissed as it was not properly removed in accordance with the requirements of the removal statute. See Edgecombe Cnty. Soc. Servs. v. Wallace, No. 4:21-cv-78-FL, 2021 WL 3732236, at *2 (E.D. N.C. Jun. 24, 2021) (recommending a petition for removal be denied because the defendant did not attach the documents required by statute), Report and Recommendation adopted by 2021 WL 3013359 (E.D. N.C. Jul. 16, 2021).
The Court notes the Petition indicates that “[a] copy of all precess, pleadings and orders served upon defendant in the state court action are attached . . . as Exhibit ‘A.'” [Doc. 1 at 2.] However, no exhibits were attached to the Petition filed in this Court.
Additionally, the undersigned notes that dismissal of this action is also proper under Rule 41(b) of the Federal Rules of Civil Procedure because Defendant has failed to prosecute this case and has failed to comply with the Order of this Court.
Lack of Jurisdiction
Next, this case is subject to dismissal because the Court lacks subject matter jurisdiction.
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). 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.” Id.; 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.”). Although the absence of subject matter jurisdiction may be raised at any time during the case, determining jurisdiction at the outset of the litigation is the most efficient procedure. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), and a litigant must allege facts essential to show jurisdiction in his pleadings, McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). As such, Federal Rule of Civil Procedure 8(a)(1) requires that the complaint provide “a short and plain statement of the grounds for the court's jurisdiction[.]”
Generally, federal district courts have original jurisdiction over two types of cases, referred to as (1) federal question cases, pursuant to 28 U.S.C. § 1331, and (2) diversity cases, pursuant to 28 U.S.C. § 1332. As discussed below, the allegations contained in the Petition and the causes of action in the underlying state court proceedings do not fall within the scope of either form of this Court's limited jurisdiction.
Federal Question Jurisdiction
First, federal question jurisdiction arises from 28 U.S.C. § 1331, which provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” “To determine whether a plaintiff's claims ‘arise under' the laws of the United States, courts typically use the ‘well-pleaded complaint rule,' which focuses on the allegations of the complaint.” Prince v. Sears Holdings Corp., 848 F.3d 173, 177 (4th Cir. 2017) (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004)). “In other words, federal question jurisdiction exists ‘only when a federal question is presented on the face of the plaintiff's properly-pleaded complaint.'” Burbage v. Richburg, 417 F.Supp.2d 746, 749 (D.S.C. 2006) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); King v. Marriott Int'l, Inc., 337 F.3d 421, 426 (4th Cir. 2003)).
As stated, Defendant alleges that federal question jurisdiction exists over this eviction action because the case involves violations of the UCC and the FDCPA. [Doc. 1 at 1-2.] However, nothing in the record suggests that the state court proceedings present a federal question, and, as such, the eviction action could not have been brought originally in federal court. Defendant's attempt to raise federal issues pursuant to the UCC or the FDCPA simply does not create federal jurisdiction. This is so because “actions in which [state court] defendants merely claim a substantive federal defense to a state-law claim do not raise a federal question.” In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006). “The basis of federal question jurisdiction . . . must appear upon the face of the state court complaint, and it cannot be supplied by reference to the answer or petition.” Eure v. NVF Co., 481 F.Supp. 639, 642 (E.D. N.C. 1979). Accordingly, federal question jurisdiction does not exist in this case to accept removal from the state court to consider Defendant's UCC or FDCPA defenses.
Diversity Jurisdiction
Likewise, Defendant fails to plead facts showing the diversity statute's requirements are satisfied. The diversity statute requires complete diversity between the parties and an amount in controversy in excess of $75,000.00. See 28 U.S.C. § 1332(a) ; Anderson v. Caldwell, No. 3:10-cv-1906-CMC-JRM, 2010 WL 3724752, at *4 (D.S.C. Aug. 18, 2010), Report and Recommendation adopted by 2010 WL 3724671 (D.S.C. Sept. 15, 2010). Complete diversity of the parties means that no party on one side may be a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978). Here, Defendant alleges that she is a resident of Greenville, South Carolina, and that Plaintiff is “registered and headquartered in the State of South Carolina.” [Doc. 1 at 1-2.] Accordingly, the Court finds that the pleadings filed in this action fail to satisfy the diversity requirement of 28 U.S.C. § 1332(a).
Additionally, Defendant has not alleged facts showing the amount in controversy is met in this case.
Thus, the Court finds Defendant has failed to allege facts to establish that this Court has subject matter jurisdiction over her claims under either federal question or diversity grounds, and, therefore, the Petition should be denied and the action should be remanded, sua sponte, to the state court.
RECOMMENDATION
Accordingly, it is recommended that the District Court sua sponte DENY the Petition and REMAND this action to the state court because this matter was improperly removed and the Court lacks subject matter jurisdiction over this action.
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, Suite 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).