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Dillard v. Pines

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

April 20, 2018

Bobbie Dillard, Petitioner,
Whispering Pines, Respondent.


          Kevin F. McDonald United States Magistrate Judge.

         The petitioner, proceeding pro se, files a petition for removal and federal stay of eviction (doc. 1) from the state magistrate court, asserting a claim here alleging a federal question arises from an eviction action against her for non-payment of rent. The petitioner is a non-prisoner, and files this action in forma pauperis under 28 U.S.C. § 1915. Pursuant to the provisions of 28 U.S.C. §636(b), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review the complaint for relief and submit findings and recommendations to the District Court. The petition is subject to summary dismissal for lack of jurisdiction.


         This case arises from a state eviction action (2018CV4210102979) filed against the petitioner by her landlord Whispering Pines. A Rule to Vacate or Show Cause for nonpayment of rent was issued against the petitioner by the state magistrate on March 27, 2018 (doc. 1-1). The petitioner then filed her petition for removal of the action from the state court to this court, alleging that the eviction proceedings occurred “in violation of the Uniform Commercial Code [UCC], ” and that the landlord is “attempting to collect a debt in violation of the Fair Debt Collection Practices Act [FDCPA]” (doc. 1). The petitioner maintains that these alleged violations give rise to federal jurisdiction, thus making this action removable. The undersigned disagrees.


         The petitioner filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct a petitioner's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts, which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).


         Lack of Subject Matter Jurisdiction

         The petitioner contends that she is removing her case from state court (where she is the defendant) on the basis of federal question jurisdiction (doc. 1). 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); see also Nat'l Fed. of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2576 (2012) (explaining that the federal government possesses only limited powers). Because federal courts have limited subject matter jurisdiction, there is no presumption that the Court has jurisdiction. Pinkley, Inc. v. City of Frederick, MD., 191 F.3d 394, 399 (4th Cir. 1999).

         Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). A district court's original jurisdiction may be of federal question jurisdiction, which exists in all civil actions arising under the Constitution, law, or treaties of the United States. 28 U.S.C. § 1331.

         In her notice of removal, the petitioner alleges that federal question jurisdiction exists over this eviction action because this case involves violations of the UCC and the FDCPA. The state magistrate's Rule to Vacate or Show Cause she provides with her notice of removal provides nothing to suggest that the state proceedings presented a federal question, and as such the eviction action could not have been brought originally in federal court. The petitioner's attempt to raise federal issues pursuant to the UCC or the FDCPA does not create federal jurisdiction: “actions in which [state court] defendants merely claim a substantive federal defense to a state law claim do not raise a federal question.” In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006). “The basis of federal question jurisdiction [ ] must appear upon the face of the state court complaint, and it cannot be supplied by reference to the answer or petition.” Gully v. First Nat'l Bank, 299 U.S. 109 (1936). Accordingly, this court lacks subject matter jurisdiction to accept removal from the state court to consider the petitioner's UCC and FDCPA claims, and the case should be remanded.


         Accordingly, it is recommended that the District Court sua sponte REMAND this case to the State Magistrate Court for lack of subject matter jurisdiction. The petitioner's attention is directed to the important notice on the next page.

         Notice of Right to File Objections to Report ...

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