United States District Court, D. South Carolina, Columbia Division
REPORT AND RECOMMENDATION
F. MCDONALD UNITED STATES MAGISTRATE JUDGE.
William Wazney (“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
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.
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
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
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.).
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.
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
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.
South Carolina The defendant's attention is
directed to an ...