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Goldsmith v. Ritacco

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

May 9, 2018

Honanda Goldsmith, Homondo Goldsmith, Plaintiffs,
Denise Ritacco, Defendant.


          Kevin F. McDonald, United States Magistrate Judge

         The plaintiffs, proceeding pro se, filed a notice of removal (doc. 1) from the state magistrate court, asserting a claim here alleging a federal question arises from an eviction action against them for non-payment of rent. The plaintiffs are non-prisoners and file 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 notice and submit findings and recommendations to the District Court. The removal petition is subject to summary dismissal for lack of jurisdiction.


         This case arises from a state eviction action (2018CV2310800636) filed against the plaintiffs by their landlord Denise Ritacco. A Rule to Vacate or Show Cause for nonpayment of rent was issued against plaintiff Homondo Goldsmith by the state magistrate on April 17, 2018 (doc. 1-1). The plaintiffs then filed a notice of 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 plaintiffs maintain that these alleged violations give rise to federal jurisdiction, thus making this action removable. The undersigned disagrees.


         The plaintiffs 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 pro se litigants, the plaintiffs' 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 plaintiffs 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 plaintiff'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 plaintiffs contend that they are removing this case from state court (where they are the defendants) 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 the petition for removal, the plaintiffs allege 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 attached to the 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 plaintiffs' 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 plaintiffs' UCC and FDCPA claims, and the petition should be denied and case remanded.


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

         Notice of Right to File Objections to Report ...

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