United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 6) recommending
that this Court remand this case to state court sua
sponte for lack of subject matter jurisdiction. For the
reasons set forth below, this Court adopts the R & R as
the order of the Court. This action is remanded to state
court for further proceedings.
31, 2018, pro se Defendants Paul D. Mack and Vincent
D. Mack, also known as Vincent Demar Mack, filed a notice of
removal for Civil Action No. 2014-CP-10-06824 (a state court
mortgage foreclosure action) from the Court of Common Pleas
of Charleston County, South Carolina. No other defendants in
the state foreclosure action joined in the notice of removal.
On July 13, 2018, the Magistrate Judge issued an R & R.
(Dkt. No. 6.) No party filed objections.
Pro Se Pleadings
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990).
Magistrate's Report and Recommendation
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See Mathews
v. Weber, 423 U.S. 261, 270 - 71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1). This Court is
charged with making a de novo determination of those
portions of the R & R to which specific objection is
made. Fed.R.Civ.P. 72(b)(2). Where the plaintiff fails to
file any specific objections, "a district court need not
conduct a de novo review, but instead must only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (internal quotation
have not filed Objections, and therefore the R & R is
reviewed for clear error.
Magistrate Judge explained that, in addition to Defendants
failing to comply with the applicable rules for removal,
this Court does not have federal jurisdiction over the causes
of action in Plaintiffs complaint, which asserts state law
claims for the foreclosure of mortgages. See Civil
Action No. 2014-CP-10-06824 available at Charleston
County Circuit Court Public Index,
10002&casenumber=2014CP 1006824&docseq= P1 A1 (last
visited July 31, 2018).
a state court foreclosure action, and the complaint is solely
based on state law. To the extent Defendants are attempting
to assert defenses or counterclaims under federal law, they
cannot create federal question jurisdiction. See Vaden v.
Discover Bank, 556 U.S. 49, 60, 129 S.Ct. 1262, 1272
(2009) ("Federal jurisdiction cannot be predicated on an
actual or anticipated defense .... Nor can federal
jurisdiction rest upon an actual or anticipated
counterclaim."). Therefore, this Court lacks federal
question jurisdiction. Furthermore, the Defendants are
precluded as a matter of law from removing this case on the
basis of diversity of citizenship because they are citizens
of South Carolina, the state in which this action was
brought. See 28 U.S.C. § 1441(b)(2). Therefore,
the Court finds that the Magistrate Judge correctly applied
the controlling law to the facts of this case.