United States District Court, D. South Carolina
E. Rogers, III United States Magistrate Judge
Delores and Robert Guernsey, proceeding pro se,
filed a Notice of Removal in this Court in an attempt to
remove a state foreclosure action filed against them and
three other Defendants in the Horry County Court of Common
Pleas in 2016. See No. 2016-cp-26-004432. However,
their attempted removal is improper and this matter is
remanded to the state court as discussed below.
order for this court to hear and decide a case, the court
must have jurisdiction over the subject matter of the
litigation. Federal courts have an “independent
obligation” to investigate the limits of its
subject-matter jurisdiction. Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006). The court's
obligation to examine its subject-matter jurisdiction is
triggered whenever that jurisdiction is “fairly in
doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671
(2009). It is well settled that federal courts are courts of
limited jurisdiction and possess only powers authorized by
the constitution and statute, which is not to be expanded by
judicial decree. Willy v. Coastal Corp., 503 U.S.
131, 136-37 (1992); Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986); see Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994); American Fire & Casualty Co. v.
Finn, 341 U.S. 6 (1951). It is to be presumed that a
cause lies outside this limited jurisdiction, and the burden
of establishing the contrary rests upon the party asserting
jurisdiction. McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 182-83 (1936).
assert removal is pursuant to 28 U.S.C. § 1443(1), which
Any of the following civil actions or criminal prosecutions,
commenced in a State court may be removed by the defendant to
the district court of the United States for the district and
division embracing the place wherein it is pending: (1)
Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the
equal civil rights of citizens of the United States, or of
all persons within the jurisdiction thereof;
28 U.S.C. § 1443. The plain language of the statute
makes it applicable to circumstances where a person cannot
enforce certain rights in state court. There is no showing of
such circumstances here. Additionally, application of 28
U.S.C. § 1443 is limited to allegations of inequality
not present in this action based on the Notice of Removal.
See Noel v. McCain, 538 F.2d 633, 635 (4th Cir.
1976)(removal under § 1443(1) requires a showing,
inter alia, that defendant is being deprived of
federal rights protecting against racial discrimination).
Thus, remand is appropriate due to a lack of subject matter
attempt to remove this action is improper under 28 U.S.C.
§ 1441, as well. Section 1441 governs the removal of
civil actions generally. A defendant may remove a civil
action which was brought in state court if the case
originally could have been brought in a federal district
court. 28 U.S.C. § 1441. District courts exercise two
types of subject matter jurisdiction: federal question
jurisdiction under 28 U.S.C. § 1331 and diversity
jurisdiction under 28 U.S.C. § 1332. Jurisdiction is
established based on the allegations of the Plaintiff's
complaint filed in state court. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Ordinarily,
defendant's answer or counterclaims do not control
removal jurisdiction. See Id. Federal courts are
presumptively without jurisdiction over civil matters, and
the burden of establishing the contrary rests upon the party
seeking jurisdiction. See Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Removal
jurisdiction is strictly construed; in doubtful cases, the
action must be remanded. See Mulcahey v. Columbia Organic
Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
“ look no farther than the plaintiff's complaint in
determining whether a lawsuit raises issues of federal law
capable of creating federal-question jurisdiction under 28
U.S.C. § 1331.” Custer v. Sweeney, 89
F.3d 1156, 1165 (4th Cir.1996). Moreover, “[w]hen
evaluating the propriety of removal, the district court must
determine the nature of plaintiff's claims from the face
of the complaint at the time the petition for removal was
filed.” Martin v. Lagualt, 315 F.Supp.2d 811,
814 (E.D. Va.2004) (citation omitted).
clear from the face of the Complaint here that this case is a
foreclosure action based on state law. Based on the
circumstances presented here, the fact that Defendants might
be able to raise a defense to the foreclosure action based on
a federal statute or on a constitutional amendment does not
provide removal jurisdiction so long as the state court
complaint is based on purely state law. See Merrell Dow
Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). The
Defendants have not shown that this court has jurisdiction
rooted in either diversity or federal question.
the Notice of Removal is untimely. 28 U.S.C. § 1446(b)
The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b). Public records show the initial
pleading in this case was filed in July 2016. Defendants
filed an Answer to the Complaint in April 2017. Defendants
filed an Amended Answer in May 2018 because Defendants allege
they first were served a motion to substitute Plaintiff dated
June 26, 2017, on April 19, 2018. Defendants' Notice of
Removal was filed June 12, 2018.
have not complied with § 1446(b) time requirements.
Failure to comply with the procedures for removal in and of
itself may warrant remand. Nat'l Union Fire Ins. Co.
v. Louth, 40 F.Supp.2d 776 (W.D. Va. 1999); see also
Ex parte Bopst, 95 F.2d 828, 829 (4th Cir.
1938)(“in removal proceedings the provisions of the
removal statute must be strictly followed, and that
procedural matters thus become jurisdictional”).
extent liberally construed Plaintiff is attempting to fall
under § 1446(b)(3), proper timing of removal has also
passed. Section 1446(b)(3) states “if the case stated
by the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
become removable.” The substitution of the Plaintiff,
who was the successor in interest to the prior Plaintiff, by
itself, would not cause the action to become removable in
this particular case as the ...