United States District Court, D. South Carolina
Fargo Bank NA, Plaintiff, represented by Erica Greer Lybrand,
Rogers Townsend and Thomas.
Antonio Bryant, Defendant, Pro Se.
A. Bryant, Defendant, Pro Se.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
action was originally filed by the Plaintiff in the South
Carolina Court of Common Pleas, Dorchester County. This is an
action for foreclosure of a mortgage.
4, 2016, the Defendants Antonio Bryant and Joyce A. Bryant,
proceeding pro se, removed the action to this United States
District Court. They filed an amended notice of removal on
May 27, 2016. A review of this Court's docket reveals
that this is the second time this case has been removed to
federal court. See Wells Fargo Bank, N.A. v. Bryant,
et. al., Civil Action No. 2:15-4726-MBS-BM (D.S.C); see also
Aloe Creme Laboratories. Inc. v. Francine Co., 425
F.2d 1295, 1296 (5th Cir. 1970)[a federal court may take
judicial notice of the contents of its own records]. The
previous removal was remanded back to the South Carolina
Court of Common Pleas by Order of the Court filed January 15,
considering removal jurisdiction, federal courts must
"scrupulously confine their own jurisdiction to the
precise limits which the statute has defined."
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
109 (1941)(internal quotation marks and citation omitted).
Federal courts are courts of limited jurisdiction, see
Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 377 (1994), and a district court is charged with
ensuring that all cases before it are properly subject to
such jurisdiction. In re Bulldog Trucking, Inc., 147
F.3d 347, 352 (4th Cir. 1998). In addition, "[r]emoval
statutes must be strictly construed against removal, "
Scott v. Greiner, 858 F.Supp. 607, 610 (S.D.W.Va.
1994), and a federal court must "resolve all doubts
about the propriety of removal in favor of retained state
court jurisdiction." Marshall v. Manville Sales
Corp., 6 F.3d 229, 232 (4th Cir. 1993): see also
Palisades Collections LLC v. Shorts, 552 F.3d 327,
333-34 (4th Cir. 2008); Mulcahey, 29 F.3d at 151
["If federal jurisdiction is doubtful, a remand is
burden is on the removing defendant to establish subject
matter jurisdiction; Mulcahey v. Columbia Organic
Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994);
and a district court is obligated to consider sua sponte
whether jurisdiction is present and to remand the case to
state court if it determines that it lacks jurisdiction. See
28 U.S.C. Â§ 1447(c); Fed.R.Civ.P. 12(h)(3); Ellenburg v.
Spartan Motors Chassis. Inc., 519 F.3d 192, 196 (4th
Cir. 2008). Although the basis for the removal here is
unclear, it appears to be based on the Defendants'
contention that, as United States citizens, they are
"the property and Franchise of the Federal Government,
" and therefore the state court lacks subject matter
jurisdiction over them.
removal statute, 28 U.S.C. Â§ 1441, allows a state court
defendant to remove a case to a federal district court if the
state court action could have originally been filed there.
See Darcangelo v. Verizon Commc'ns, Inc., 292
F.3d 181, 186 (4th Cir. 2002). Generally a case can be filed
in a federal district court only if there is diversity of
citizenship under 28 U.S.C. Â§ 1332, or if there is federal
question jurisdiction under 28 U.S.C. Â§ 1331. Neither of
these grounds for jurisdiction exists here.
a careful review of the pleadings in this case fails to
reveal any basis for federal question jurisdiction. This is a
state law foreclosure action, and a review of the complaint
reveals that it is solely based on state law. See ECF No.
1-1, at 4-7. As was noted in the Report and Recommendation
entered in Defendant Joyce A. Bryant's previous failed
attempt to remove this case, no federal jurisdiction exists
over a complaint which "merely states a cause of action
for enforcement of a promissory note and foreclosure of the
associated security interest in real property."
Burbage v. Richburg, 417 F.Supp.2d 746, 749 (D.S.C.
2006); see also Pettis v. Law Office of Hutchens, Senter,
Kellam and Pettit, C/A No. 3:13-147-FDW, 2014 WL 526105,
at *2 (W.D. N.C. Feb. 7, 2014)(collecting cases');
Deutsche Bank Nat'l Trust Co. v. Lovett, C/A No.
3:12-1819-JFA, 2013 WL 528759, at *2 (D.S.C. Feb. 11,
2013). To the extent Defendants now contend that removal is
proper pursuant to Hill Top Developers v. Holiday Pines
Serv. Corp., 478 So.2d 368, 370 (Fla. 2d DC A
1985)[noting that lack of subject matter jurisdiction may
properly be raised for the first time at the appellate stage
and holding that absent prior approval of a charge for plant
facility expansion by the Public Service Commission, the
trial court lacked subject matter jurisdiction to grant
judgment for regulated utility], that case provides no
support for Defendants' argument that the Court of Common
Pleas for Dorchester County lacks jurisdiction over this
state foreclosure action. Although Defendants argue lack of
jurisdiction, they fail to make any plausible argument in
support of this assertion. Additionally, to the extent the
Defendants are attempting to raise a defense to the
foreclosure action based on a federal statute or
constitutional amendment, such defenses do not establish
removal jurisdiction. See Merrell Dow Pharm., Inc. v.
Thompson, 478 U.S. 804, 808 (1986); Cook v.
Georgetown Steel Corp., 770 F.2d 1272, 1275 (4th Cir.
1985)["A federal defense to a state cause of action is
not sufficient to invoke federal jurisdiction."].
to the extent the Defendants are attempting to claim
diversity of citizenship as a basis for removal of this case
by asserting that, as United States citizens, they are not
South Carolina citizens, that claim is unavailing. They are
citizens of both, and there is nothing in the filings in this
case to indicate that the Defendants are not South Carolina
residents for purposes of this state law mortgage foreclosure
action. As such, in the absence of a federal question being
presented on the face of the Complaint, Defendants are
precluded as a matter of law from removing this case on the
basis of diversity of citizenship. See 28 U.S.C. Â§
1441(b)(2)["A civil action otherwise removable solely on
the basis of the jurisdiction under section 1332(a) of this
title may not be removed 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."].
on the foregoing, it is recommended this case be remanded
back to state court. The parties are referred ...