United States District Court, D. South Carolina
Jeffrey T. Richards, Plaintiff,
Lisa Belcher, Defendant.
E. Rogers, III United States Magistrate Judge.
Motion to proceed in forma pauperis (ECF No. 3) is
proceeding pro se and in forma pauperis,
has filed documents in an attempt to remove a case from state
magistrate's court to this federal district court. The
statute governing the procedure for removal of civil actions,
28 U.S.C. § 1446, requires Defendant to file a notice of
removal signed pursuant to Rule 11 of the Federal Rules of
Civil Procedure. The Notice must contain a short and plain
statement of the grounds for removal, together with a copy of
all process, pleadings, and orders served upon Defendant. 28
U.S.C. § 1446. Plaintiff has failed to comply with
either of these requirements under the removal procedure
statute. Plaintiff had not filed a signed notice of removal.
Failure to comply with the procedures for removal in and of
itself may warrant remand. Nat'l Union Fire Ins. Co.
v. Louth, 40 F.Supp.2d 776 (W.D. Va. 1999); see also
Ex parte Bopst, 95 F.2d 828, 829 (4th Cir.
1938)(“in removal proceedings the provisions of the
removal statute must be strictly followed, and that
procedural matters thus become jurisdictional”).
did not attach Plaintiff's Complaint, but it is clear
from the filings- including, but not limited to, identifying
the style of the case as that contained in the state court
action (including identifying herself as the Defendant) and
the relief Defendant is seeking that the state court
“rule to vacate or show case be dismissed”-
Defendant is attempting to remove an action for ejectment for
failure to pay rent. Plaintiff is Defendant's landlord.
Defendant appears to identify defenses or counterclaims under
federal laws, the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 and the Fair Housing Act, 41 U.S.C. §
district court may sua sponte remand a case to state
court based on lack of subject matter jurisdiction.
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 196 (4th Cir. 2008). The presence or absence of federal
question jurisdiction is governed by the “well pleaded
complaint” rule. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987) and Holmes Group,
Inc. v. Vornado Air Circulation Sys, Inc., 535 U.S. 826,
831 (2002). Federal jurisdiction exists only when a federal
question is present on the face of a properly pleaded
complaint. The removing defendant has the burden of
establishing subject matter jurisdiction. Mulcahey v.
Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th
Cir. 1994). Upon the record before the court, there is no
federal question jurisdiction arising from the allegations by
the Plaintiff in the state court action.
extent Defendant seeks federal question jurisdiction by way
of defenses or counterclaims asserting federal law, such
counterclaims do not allow removal of the action. See
Caterpillar, 482 U.S. at 392 and Holmes, 535
U.S. at 831. A plaintiff is master of his complaint and may
avoid federal jurisdiction by relying exclusively on state
law. Id. Counterclaims cannot serve as a basis for
federal question jurisdiction on removal. See id.
Removal to this court in the instant action is not authorized
by 28 U.S.C. § 1441. Therefore, the Court lacks
jurisdiction to retain this action.
on the foregoing, IT IS ORDERED that this case is remanded to
state court for disposition. See, e.g., Johnson v.
Wyeth, 313 F.Supp. 2d1272, 2004 WL 771050 (N.D. Ala.
Apr. 6, 2004); Wyatt v. Walt Disney Co., No. 97-116,
1999 WL 33117255 (W.D. N.C. July 26, 1999);
Bristol-Meyers Squibb Co. V. Safety National Casualty
Corp., 43 F.Supp.2d 734, 737 (E.D.Tex. 1999);
Vaquillas Ranch Company v. Texaco Exploration &
Production. Inc., 844 F.Supp. 1156, AO 72A (Rev.8/82)
1160-1163 (S.D.Tex. 1994)(criticizing the rationale in
Giangola v. Walt Disney World Co., 753 F.Supp. 148
(D.N.J. 1990), and distinguishing Long v. Lockheed
Missiles & Space Co., 783 F.Supp. 249 (D.S.C.
1992)); Holt v. Tonawanda Coke Corporation, 802
F.Supp. 866, 868 (W.D.N.Y. 1991); McDonough v. Blue Cross
of Northeastern Pennsylvania, 131 F.R.D. 467 (W.D.Pa.
1990); City of Jackson v. Lakeland Lounge of Jackson.
Inc., 147 F.R.D. 122, 124 (S.D.Miss. 1993)(a remand is
“nondispositive and can be determined by a magistrate
judge by final order.”); Unauthorized Practice of
Law Committee v. Gordon, 979 F.2d 11, 12-13 (1st Cir.
1992). But see Vogel v. U.S. Office Products Co.,
258 F.3d 509 (6th Cir. 2002); First Union Mortgage Corp.
v. Smith, 229 F.3d 991 (10th Cir. 2000); In re U.S.
Healthcare, 159 F.3d 142 (3d Cir. 1998).
avoid the problems that arose in City of Jackson v.
Lakeland Lounge of Jackson, Inc., supra, 147 F.R.D. at
123-124, IT IS FURTHER ORDERED that the Office of the Clerk
of Court shall not immediately certify this Order to the
Horry County Magistrate Court. If both parties in the
above-captioned case fail to file an appeal of this Order or
written objections to this Order (if this Order is treated as
a Report and Recommendation) within fourteen (14) days after
this Order is filed, the Office of the Clerk of Court shall
then certify this Order to the Horry County Magistrate Court.
If, however, either party files an appeal of this Order or
written objections to this Order (if this Order is treated as
a Report and Recommendation), the Office of the Clerk of
Court, at the end of the fourteen-day period, shall forward
the case file and any appeal or objections to a United States
District Judge for a final disposition. Vaquillas Ranch
Company v. Texaco Exploration & Production, Inc.,
supra, 844 F.Supp. at 1163; McDonough v. Blue Cross of
Northeastern Pennsylvania, supra, 131 F.R.D. at467
[order); Long, 783 F.Supp. 249. [Report and Recommendation].
 State court records for cause no.
2017-cv-261091850 contained on the public index also indicate
the proceeding is for the purpose of seeking the ejectment of
Defendant from Plaintiff's property. See generally,
(with search parameters limited by Defendant's name). The
court may take judicial notice of factual information located
in postings on government websites. See In re Katrina
Canal Breaches Consolidated Litigation, No. 05-4182,
2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that
courts may take judicial notice of governmental websites
including other courts' records); Williams v.
Long, No. ...