United States District Court, D. South Carolina, Spartanburg Division
REPORT AND RECOMMENDATION
F. McDonald United States Magistrate Judge.
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.
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.
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).
of Subject Matter Jurisdiction
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).
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.
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.
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.
of Right to File Objections to Report ...