United States District Court, D. South Carolina, Spartanburg Division
ORDER AND OPINION
matter is before the court pursuant to Magistrate Judge
Jacquelyn D. Austin's Report and Recommendation for
sua sponte Remand (“Report”) (ECF No.
10), filed on August 17, 2017, recommending that the case be
remanded to state court. Darryl Gregory Gray, Jr.
(“Defendant”), proceeding pro se, filed
no objections. (ECF No. 10.) For the reasons set forth below,
the court ADOPTS the Magistrate Judge's
Report and Recommendation to sua sponte
REMAND this action to state court without
requiring the State of South Carolina to respond to
26, 2017, Defendant filed a Notice of Removal (ECF No.1) for
a case involving criminal prosecution, or a traffic ticket,
for simple possession of marijuana. (ECF No. 1-1 at 3.) In
the Notice of Removal, Defendant contends that South Carolina
is represented in state court by Officer
Sherman. Defendant alleges removal of the action
“for a Right to Review pursuant to” 5 U.S.C.
§ 702 because state court is “an administrative
court that has injured and or [sic] in the process
of injuring me.” (Id.) The federal questions
that Defendant alleges in his removalare:
1. Can a corporation/or entity sue an American National state
2. Are the Orders of an Administrative Court enforceable?
3. Is Title 22 USC 611 and 612 still applicable in the United
4. Does a Court have subject matter jurisdiction when the
party that is suing does not have the authority to sue?
“right standing to sue”
(Id.) Defendant also claims the court has
jurisdiction under diversity citizenship under the theory
that his citizenship is one of a “private American
National citizen” generally, but not of South Carolina
specifically. (Id.) The final claim of Defendant is
that Officer Sherman is a foreign agent pursuant to 22 U.S.C.
§ 612 and the State of South Carolina is a foreign
corporation pursuant to 22 U.S.C. § 611. (Id.)
August 17, 2017, after considering Defendant's alleged
federal questions, the Magistrate Judge issued a Report
recommending that this court sua sponte remand the
case to state court without requiring the State of South
Carolina to respond to Defendant's pleading. (ECF No.10.)
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, and the recommendation has no
presumptive weight-the responsibility to make a final
determination remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court is charged
with making a de novo determination of those
portions of the Report and Recommendation to which specific
objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions.
See 28 U.S.C. § 636(b)(1).
party may remove a state court action to federal district
court pursuant to 28 U.S.C. § 1441 where the state
action could have been originally filed there. See
Darcongelo v. Verizon Commc'ns, Inc., 292 F.3d 181,
186 (4th Cir. 2002). A case may be originally filed in a
federal district court either under 28 U.S.C. § 1332 for
diversity of citizenship and an amount in controversy greater
than $75, 000.00 or under 28 U.S.C. § 1331 where it
arises under a federal question. A federal court should
remand the case to state court where no federal subject
matter jurisdiction is evident from the face of the Notice of
Removal or any state court pleadings provided. Ellenburg
v. Spartan Motor Chassis, Inc., 519 F.3d 192, 196 (4th
Cir. 2008). Courts of this circuit have held that removal
statutes favor remand where possible and are construed
against removal jurisdiction. See, e.g., Cheshire v.
Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098,
1102 (D.S.C. 1990); Bellone v. Roxbury Homes, Inc.,
748 F.Supp. 434, 436 (W.D.Va. 1990). Where subject matter
jurisdiction is at issue, “courts are obligated to
consider sua sponte issues.” Gonzalez v.
Thaler, 565 U.S. 134, 141 (2012).
was advised of his right to file an objection to the Report
“within fourteen (14) days of the date of service of
the Report and Recommendation, ” or by August ...