1st Franklin Financial Corp v. Howland et al

Filing 5

MEMORANDUM OPINION - Defendant Mark Howland has filed a notice of removal along with a financial affidavit, (docs. 1 & 4), presumably seeking to remove this action without prepayment of the filing fee. For the reasons explained below, this cou rt lacks subject-matter jurisdiction, and the action will be REMANDED. This action is due to be remanded to the District Court of Shelby County, Alabama. A separate order will enter. Signed by Magistrate Judge John H England, III on 1/15/2016. (KEK)

FILED
2016 Jan-15 PM 01:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
IST FRANKLIN FINANCIAL CORP.,
Plaintiff,
v.
MARK HOWLAND,
Defendant

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Case Number: 2:15-cv-02362-JHE

MEMORANDUM OPINION
Defendant Mark Howland has filed a notice of removal along with a financial affidavit,
(docs. 1 & 4), presumably seeking to remove this action without prepayment of the filing fee.
For the reasons explained below, this court lacks subject-matter jurisdiction, and the action will
be REMANDED.
I. Procedural History and Background
On December 30, 2015, Defendant Mark Howard filed a notice of removal for the case
styled 1st Franklin Financial Corp. v. Mark Howard, SM-2015-000181, from the District Court
of Shelby County, Alabama. (Doc 1). The notice explains Plaintiff 1st Franklin Financial filed
this action on or about August 5, 2015, in the District Court of Shelby County, Alabama, for the
amount of $1,193.81. (Id.at 1). The defendant alleges that, after being served with the state
court complaint, his wife contacted the plaintiff, and a branch manager told here that if she made
a payment on the account, the plaintiff would not continue the legal action. (Id.). The defendant
further alleges his wife made a $300.00 payment to the plaintiff on or about September 1, 2015.
(Id.). Nevertheless, the state court entered a default judgment in the amount of $1,193.81 on
October 6, 2016, and subsequently entered a Writ of Garnishment for the same amount. (Id. at

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1). Thereafter, on or about December 14, 2015, the state court entered an order giving the
defendant leave to file a motion to amend the garnishment amount. (Id. at 2). Instead, it
appears, the defendant filed this notice of removal in federal court. Although the defendant has
not filed a motion to proceed in forma pauperis in response to the undersigned’s show cause
order instructing him to pay the applicable filing fee, he has submitted a financial affidavit, (doc.
4), apparently seeking to remove this action without payment of the applicable filing fee.
II. Standard of Review
Because Plaintiff seeks to proceed in forma pauperis, the court undertakes a preliminary
screening of the complaint and notice of removal in accordance with 28 U.S.C. § 1915(e)(2)(B).
This section requires a federal court to dismiss an action brought thereunder if the court
determines the action is “frivolous or malicious,” “fails to state a claim on which relief may be
granted,” or “seeks monetary relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B)(i), (ii), (iii). Furthermore, regardless of the outcome of this preliminary
screening, the Federal Rules of Civil Procedure instruct that, “[i]f the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P.
12(h)(3). Upon review of the notice of removal, it is apparent the court lacks subject-matter
jurisdiction, this action is due to be remanded.
III. Analysis
It is axiomatic that federal courts are courts of limited jurisdiction, with the power to hear
only cases authorized by the Constitution or by statute. Kokkonen v. Guardian Life Ins. Co. of
Amer., 511 U.S. 375, 377 (1994). Removal jurisdiction is purely statutory in nature. Finn v.
American Fire & Cas. Co., 207 F.2d 113, 115 (5th Cir. 1953).1 The general removal statute, 28

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The decisions of the former Fifth Circuit handed down before October 1, 1981 are
2

U.S.C. § 1441, provides:
Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place
where such action is pending.
28 U.S.C. § 1441(a). Although removal jurisdiction is technically distinct from subject-matter
jurisdiction, its requirement that the court have original jurisdiction makes it derivative of
subject-matter jurisdiction. See Cogdell v. Wyeth, 366 F.3d 1245, 1248 (11th Cir. 2004) (holding
that, where the court lacks original jurisdiction, lack of removal jurisdiction and lack of subjectmatter jurisdiction coincide). There can be no removal jurisdiction without original, subject
matter jurisdiction.
The defendant contends the removal is proper because this court has federal question
subject-matter jurisdiction,2 (doc. 1 at 3, ¶ 9), which states “the district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States,” 28 U.S.C. § 1331. When evaluating whether this case arises under federal law, the
“well-pleaded complaint” rule provides that the plaintiff’s properly pleaded complaint governs
the jurisdictional determination. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152
(1908). The presence of a federal defense or counterclaim does not make the case removable.
See Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 832 (2002);
Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987); Blab T.V. of Mobile, Inc. v. Comcast
Cable Comms., Inc., 182 F.3d 851, 854 (1999).

binding in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).
2
There is no diversity-of-citizenship jurisdiction pursuant to 28 U.S.C. §1332 in this case
because, although it appears the parties are citizens of different states, the amount-in-controversy
requirement is not met. See 28 U.S.C. § 1332.
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Although the defendant’s notice of removal alleges the plaintiff violated the Fair Debt
Collection Practices Act by continuing with the state-court litigation and attempting to collect an
inaccurate amount, this does not transform the underlying small claims collection action into “a
civil action arising under the Constitution, laws, or treaties of the United States.”
IV. Conclusion
For the reasons stated above, this court lacks subject-matter jurisdiction. This action is
due to be remanded to the District Court of Shelby County, Alabama. A separate order will
enter.
DONE this 15th day of January 2016.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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