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Guo v. Lin

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

January 11, 2019

Wengui Guo, also known as Miles Kwok, Plaintiff,
v.
Yudan Lin, Defendant.

          REPORT AND RECOMMENDATION

          Paige J. Gossett, Judge

         The plaintiff, Wengui Guo, a Chinese citizen in New York seeking political asylum, filed a defamation action against the defendant, Yudan Lin, in the Lexington County Court of Common Pleas. Plaintiff filed a notice of removal pursuant to 28 U.S.C. § 1446(a). (ECF No. 1.) This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on two motions to dismiss, a motion to remand, and a motion for sanctions. (ECF Nos. 16, 21, 23, & 30.) Following Plaintiff's filing of a motion to dismiss counterclaims for failure to state a claim (ECF No. 16), the court advised Defendant of the summary judgment and dismissal procedures and the possible consequences if she failed to respond adequately to the Plaintiff's motion in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). (ECF No. 17.) Defendant then filed a response in opposition to the motion (ECF No. 24), and the Plaintiff filed a reply (ECF No. 25). Plaintiff also filed a motion to remand this action. (ECF No. 21.) Thereafter, Defendant filed a motion to dismiss for failure to state a claim and a motion for sanctions.[1] (ECF Nos. 23 & 30.) Having reviewed the record presented and the applicable law, the court finds that this case should be remanded.

         BACKGROUND

         On October 23, 2018, Plaintiff filed an action in the Lexington County Court of Common Pleas, asserting the following causes of action: (1) defamation, (2) defamation per se, (3) intentional infliction of emotional distress, and (4) intentional interference with prospective contractual relations. (See ECF No. 16-1 at 2.)[2] On November 5, 2018, Defendant filed a notice of removal in this court. (ECF No. 1.) Defendant asserts that removal is proper as “[t]here is complete diversity between the parties” and “[t]he amount in controversy exceeds $ 75, 000, excluding interest, costs, and attorney fees.” (ECF No. 1 at 1-2) (citing 28 U.S.C. § 1332(a)). Defendant further states, “Plaintiff is a citizen of the state of New York, not a United States citizen. Defendant is a citizen of the state of SOUTH CAROLINA, a United States citizen.” (ECF No. 1 at 2.)

         DISCUSSION

         A. Rule 12(b)(1) Standard

          Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

         Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), 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 federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         B. Standard for Remand

         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). Accordingly, a federal court is required to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Id. at 352; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Generally, a case can be filed in federal district court if there is diversity of citizenship under 28 U.S.C. § 1332, or if there is federal question jurisdiction under 28 U.S.C. § 1331. The removal statute, 28 U.S.C. § 1441, allows a state court defendant to remove a case to a federal district court if the state court action could have been originally filed there. See Darcangelo v. Verizon Commc'ns, Inc., 292 F.3d 181, 186 (4th Cir. 2002). However, the removing defendant has the burden of establishing subject matter jurisdiction. Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).

         The United States Supreme Court has commanded that, when considering jurisdiction over a removed case, federal courts must “scrupulously confine their own jurisdiction to the precise limits which the statute has defined.” Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941) (internal quotation marks and citation omitted). In addition, “[r]emoval statutes must be strictly construed against removal, ” Scott v. Greiner, 858 F.Supp. 607, 610 (S.D. W.Va. 1994), and a federal court must “resolve all doubts about the propriety of removal in favor of retained state court jurisdiction.” Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993); see also Palisades Collections LLC v. Shorts, 552 F.3d 327, 333-34 (4th Cir. 2008); Mulcahey, 29 F.3d at 151 (“If federal question jurisdiction is doubtful, a remand is necessary.”).

         C. Motion to Remand

         Plaintiff argues that this court should dismiss the instant action for lack of subject matter jurisdiction. (ECF No. 16-1 at 8-10.) Noting that a state court defendant may remove a case to federal district court only if the action could have originally been filed there, Plaintiff argues that there is no basis for removal here. (ECF No. 16-1 at 9.) First, Plaintiff argues that removal is improper based on diversity jurisdiction because 28 U.S.C. § 1441(b) “prohibits removal of actions purely based on diversity jurisdiction where the defendant is a resident of the forum state.” Id. Plaintiff states “Defendant is precluded, as a matter of law, from removing this case on the basis of diversity of citizenship since she is a citizen of South Carolina, as admitted on the face of her removal papers.” Id. Second, Plaintiff argues that, “[t]o the extent Defendant seeks federal question jurisdiction by way of her counterclaims asserting federal law, it is ...


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