United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant, Judge
se Defendant, Albert R. Clay (Clay), filed a notice of
removal on October 24, 2018, which purports to remove Case
Number 2016-DR-07-1456 from the Family Court for Beaufort
County, South Carolina. Clay appears to have removed the case
pursuant to 28 U.S.C. §§ 1441 and 1443(1). See
Notice of Removal, ECF No. 1.
complaint in the removed family court case (case number
2016-DR-07-1456), titled "Complaint for Modification
Visitation", concerns a visitation/custody dispute (as
to a minor child) between Clay (the father of the child) and
the child's mother. See ECF No. 1-1, at 4-10. Clay
asserts that he has been subjected to a "third and
identical action for the exact subject matter, same parties
that ended in a final order; and the state lacks subject
matter jurisdiction...and lacks personal
jurisdiction[.]" ECF No. 1 at 1-2. He argues that a
"final order" was issued in Beaufort County family
court case number 2013-DR-07-2013 in April 2014, and that a
"final order" was also issued in Beaufort County
family court case number 2015-DR-07-0409 in November 2016,
such that the family court may not revisit the issue of
visitation/custody in the removed case.
Clay asserts that, in case number 2015-DR-07-0409, an
addendum was removed "from the final order and
supplanted a global consent order...that was not part of the
final record...." ECF No. 1 at 2. He claims that
"[t]he state court clerk has tampered with documents
and/or more likely allowed others to do so[.]"
Id. Clay further alleges that the family court
failed to complete his case within 365 days in violation of a
state administrative order, failed to docket some of his
motions, improperly denied some of his motions, and failed to
hold scheduled hearings. He asserts that he has been
(1) denied by the state due process of law, where the state
purposely continuing litigation well beyond the mandatory 365
days and, to do so, (2) in clear violation of the preclusion
clause, Article IV section 1 and the above named Federal
statute, applicable to states through the Fourteenth
Amendment to the Constitution; and (3) refusal to docket and
hear motions for years.
Id. at 5 (errors in original).
careful review of the filings and notice of removal, the
undersigned finds that this action should be remanded back to
the state court, sua sponte, because this Court
lacks subject matter jurisdiction (as discussed
courts are courts of limited jurisdiction, see Kokkonen
v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994), and a district court is charged with ensuring that
all cases before it are properly subject to such
jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d
347, 352 (4th Cir. 1998). When considering removal
jurisdiction, 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 (l94l)(internal quotation
marks and citation omitted); and the burden is on the
removing defendant to establish subject matter jurisdiction.
Mulcahey v. Columbia Organic Chemicals Co., Inc., 29
F.3d 148, 151 (4th Cir. 1994). In addition, "[r]emoval
statues 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 jurisdiction is doubtful, a remand is
a case can be filed in a federal district court only if there
is diversity of citizenship under 28 U.S.C. § 1332,
if there is federal question jurisdiction under 28 U.S.C.
§ 1331. Here, Clay has removed his case pursuant to 28
U.S.C. § 1441, asserting federal jurisdiction pursuant
to 28 U.S.C. § 1331. See ECF No. 1 at 1. Removal pursuant
to § 1441 allows a state court defendant to remove a
case to a federal district court if the state court action
could have originally been filed there. See Darcangelo v.
Verizon Commc'ns, Inc., 292 F.3d 181, 186 (4th Cir.
2002). However, "[t]he presence or absence of
federal-question jurisdiction is governed by the
'well-pleaded complaint rule,' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiffs properly pleaded
complaint. The rule makes the plaintiff the master of the
claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law." Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987) (internal citation
omitted); see Harless v. CSX Hotels, Inc., 389 F.3d
444, 450 (4th Cir. 2004) [discussing the well-pleaded
complaint rule]. Moreover, potential defenses and
counterclaims involving the Constitution or laws of the
United States are ignored in determining whether federal
question jurisdiction exists. Vaden v. Discover
Bank, 556 U.S. 49, 60 (2009).
careful review of the pleading filed in the family court
fails to reveal any basis for federal question jurisdiction.
As noted above, the family court case is titled
"Complaint for Modification Visitation", and the
first listed cause of action is "Custody and
Visitation". Additional assertions concern the possible
appointment of a Guardian ad Litem (and payment of costs
associated with such), a restraining order to prevent
discussion of the pending litigation with the minor child,
discovery in the action, and payment of associated
attorney's fees. ECF No. 1-1 at 4-10. Although Clay
asserts that there is federal jurisdiction based on a First
Amendment (access to the courts) and Fourteenth Amendment
claim, or the full faith and credit act, such claims are not
presented on the face of the family court complaint, and
federal courts generally abstain from hearing child support
matters. See Cantor v. Cohen, 442 F.3d 196, 202 (4th
Cir. 2006) ["We find additional support for our decision
in this case in the long established precedent that federal
courts are courts of limited jurisdiction and generally
abstain from hearing child custody matters."] (citing
Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980));
Capel v. Va. Dep't of Soc. Servs. Div. of Child
Support Enf't, 640 Fed.Appx. 257 (4th Cir. 2016)
[holding that a federal district court lacked subject-matter
jurisdiction to hear a civil complaint challenging the
calculation of child support payments].
Ankenbrandt v. Richards, 504 U.S. 689 (1992), the
Supreme Court clarified that the principle of the domestic
relations exception first enunciated in Barber v.
Barber. 62 U.S. 582 (1858),  does not rely on an absence
of jurisdiction over such matters in Article III of the
Constitution. Instead, the court held, inferior federal
courts lack jurisdiction to entertain such actions because
Congress did not grant them such authority in the Judiciary
Act of 1789 or subsequent statutes. Ankenbrandt v.
Richards. 504 U.S. at 698. Congressional acquiescence to
the exception, and principles of federalism, stare decisis,
and concerns of judicial economy, persuaded the Supreme Court
to preserve the domestic relations exception, but,
importantly, only in "cases involving the issuance of a
divorce, alimony, or child custody decree." Id.
at 704. Clay alleges that removal is proper under the
"full faith and credit" clause of Article IV,
Section 1 of the United States Constitution. However,
"[t]he full faith and credit clause does not provide an
independent basis of jurisdiction." Luterman v.
Levin, 318 F.Supp. 11, 13 (D. Md. 197O)(citing
Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291-92
(1888)). Otherwise, "any attempt, at any time or place,
by any person, to enforce the provisions of any state statute
or judgment would be, without more, a subject of federal
jurisdiction." People of State of Ca. v. Bruce.
129 F.2d 421, 424 (9th Cir. 1942). Therefore, invocation of
the full faith and credit clause does not constitute a claim
arising under the Constitution for purposes of 28 U.S.C.
§§ 1331 or 1441. Luterman, 318 F.Supp. at
[i]t only prescribes a rule by which courts. Federal and
state, are to be guided when a question arises in the
progress of a pending suit as to the faith and credit to be
given by the court to the public acts, records, and judicial
proceedings of a state other than that in which the court is
sitting.... [T]o invoke the rule which it prescribes does not
make a case arising under the Constitution or laws of the
State of Minn, v. N. Sec. Co.. 194 U.S. 48, 72
also purports to remove this family court case pursuant to 28
U.S.C. § 1443(1). ECF No. 1 at 1. This statute
authorizes the removal of civil actions filed in state court,
even if the action would not ...