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JP Morgan Bank, N.A. v. Wazney

United States District Court, D. South Carolina, Columbia Division

April 13, 2018

JP Morgan Chase Bank, National Association, Plaintiff,
v.
Robert W. Wazney, #363679, a/k/a Robert W illiam Wazney, Defendant.

          REPORT AND RECOMMENDATION

          KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE.

         Robert William Wazney[1] (“Defendant”), proceeding pro se, filed a notice of removal, which purports to remove a mortgage foreclosure action filed by JP Morgan Chase Bank National Association (“Plaintiff”) in the Court of Common Pleas in Sumter County, South Carolina, Case No. 2016-CP-43-00733. (doc. 1-3). All pretrial proceedings in this matter were referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Upon review, the court concludes that this case should be remanded sua sponte to the Sumter County Court of Common Pleas for lack of subject matter jurisdiction.

         BACKGROUND

         On April 4, 2018, the defendant filed a “Notice of Removal” in this court. In the Notice of Removal, the defendant alleges, inter alia, that this case was originally filed on April 22, 2016, by Plaintiff in the Sumter County Court of Common Pleas relating to a foreclosure under case number 2016-DR-43-00733 (doc. 1 at 1). The state records provided do not contain a copy of the plaintiff's complaint, however, the records provided show that the Master in Equity granted the plaintiff's Motion for Summary Judgment, and issued an Order and Judgment of Foreclosure and Sale on January 10, 2017 (doc. 1-3 at 14). The state court records further reflect that the defendant's appeal was dismissed on February 28, 2018 (doc. 1-3 at 14-15, 34). The defendant filed this notice of removal on April 4, 2018 (doc. 1).

         DISCUSSION

         Federal courts are courts of limited jurisdiction. A defendant in a case in a state court may remove that case to a federal district court only if the state court action could have been originally filed in a federal district court. 28 U.S.C. § 1441. Generally, a case can be originally filed in a federal district court if there is diversity of citizenship under 28 U.S.C. § 1332 or there if there is so-called “federal question” jurisdiction under 28 U.S.C. § 1331. Various federal courts have held that the removal statutes are to be construed against removal jurisdiction, and in favor of remand. See, e.g., Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 (D.S.C.1990) (collecting cases); see also In re Blackwater Sec. Consulting, 460 F.3d 576, 583 (4th Cir.2006) (“The party seeking removal bears the burden of demonstrating that removal jurisdiction is proper.”). 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).

         Applicable case law and statutory law, including 28 U.S.C. § 1447, provide that subject-matter jurisdiction cannot be conferred by estoppel, waiver, or consent. As a result, even if a plaintiff fails to object to a Notice of Removal within thirty days after the Notice of Removal is filed, a federal district court should still remand the case to state court if there is no federal subject matter jurisdiction evident from the face of the notice of removal and any state court pleadings provided. Ellenburg v. Spartan Motor Chassis, Inc., 519 F.3d 192 (4th Cir.2008). Thus, sua sponte remand is available under appropriate circumstances.

         In the Removal Petition, the defendant suggests that removal is proper because “the court has federal question jurisdiction”over the alleged claims. (doc. 1 at 5). He also asserts that the court has supplemental jurisdiction over any state or common law claims alleged (Id.).

         There is no federal jurisdiction over a complaint that “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); McNeely v. Moab Tiara Cherokee Kituwah Nation Chief, 2008 WL 4166328 (W.D.N.C 2008) (nothing in “simple foreclosure action of real property . . . suggests the presence of a federal question”). As such, removal of this case under federal question jurisdiction is improper.

         To the extent the defendant seeks to remove this civil action based on the court's supplemental jurisdiction under 28 U.S.C. § 1367, the court may not exercise supplemental jurisdiction if the court does not have original jurisdiction. 28 U.S.C. § 1367(a). As previously set forth, the defendant has not set forth a basis such that the court has original jurisdiction to entertain this civil action.[2]

         RECOMMENDATION

         For the foregoing reasons, the undersigned recommends this matter be remanded to the Court of Common Pleas of Sumter County, South Carolina, for lack of subject matter jurisdiction.

         IT IS SO RECOMMENDED.

         Greenville, South Carolina The defendant's attention is directed to an ...


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