McManus v. East Pointe Apartments

Filing 6

MEMORANDUM OPINION re 2 NOTICE OF REMOVAL. Signed by Judge Richard G. Andrews on 8/14/2014. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EAST POINTE APARTMENTS,
Plaintiff,
v.

KIM MCMANUS,

Civ. Action No. 14-591-RGA
Court of Common Pleas Court of the State
of Delaware in and for New Castle County
No. CPU4-14-000842
Justice of the Peace Court of the State of
Delaware in and for New Castle County
No. JP13-13-014076

Defendant.

Kim McManus, Claymont, Delaware. Pro se Plaintiff.

MEMORANDUM OPINION

August~~, 2014
Wilmington, Delaware

On May 12, 2014, Defendant Kim McManus filed a Notice of Removal from the
Court of Common Pleas of the State of Delaware in and for New Castle County. (D.I.
2). For the reasons discussed below, the Court determines that it lacks subject matter
jurisdiction and will summarily remand the case.
The removal statute provides that "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). Plaintiff did not comply with the procedure for removal of civil actions and
failed to provide the Court with a copy of the initial pleadings filed in State Court.
However, attached to the notice of removal is an Order that indicates Defendant was
sued by her landlord Plaintiff East Pointe Apartments for back rent and possession and
that she filed a retaliation counterclaim against Plaintiff. (See D. I. 2 Justice of the
Peace Court March 12, 2014 Order).
On December 12, 2013, the Justice of the Peace Court of the State of Delaware
in and for New Castle County dismissed without prejudice Plaintiff's claim and
dismissed with prejudice Defendant's claims. (See Id.). Defendant appealed and
sought a trial de novo in the Justice of the Peace Court before a three-judge panel.
The three-judge panel Order, entered March 12, 2014, explained that this was the

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second summary possession action filed against Defendant. The first action, filed June
24, 2013, resulted in judgment in favor of Plaintiff for rent and late fees through August
31, 2013, and rejected Defendant's retaliation claim. The three-judge panel affirmed
dismissal of the second summary possession, noting that Plaintiff's complaint, filed
October 23, 2013, was defective in that it failed to place Defendant on notice of the
reason for the suit and did not list the sum demanded with some accuracy. The threejudge panel also determined that Defendant's counterclaim was barred by res judicata.
Along with the notice of removal, Defendant provided the Court with an Order entered
by the Court of Common Pleas for the State of Delaware in and for New Castle County,
dated April 29, 2014, denying a motion to reopen. (See D.I. 2 Court of Common Pleas
Apr. 29, 2014 Order). The Order states that Defendant has appealed a consolidated
debt and summary possession from the JP Court and that jurisdiction lies with the
Superior Court. (Id.). Plaintiff recently filed a motion to stay the instant matter pending
the outcome of the appeal. (D.I. 5).
In order for a case to be removable to the district court, the Court must have
original jurisdiction by either a federal question or diversity of citizenship. 28 U.S.C.

§§ 1331, 1332, 1441. "Only state-court actions that originally could have been filed in
federal court may be removed to federal court by the defendant." Kline v. Security
Guards, Inc., 386 F.3d 246, 252 (3d Cir. 2004) (quoting Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987)). If the case could not have been filed originally in federal court,
then removal under 28 U.S.C. § 1441 is improper and remand is appropriate. Id.
(citations omitted).

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The notice of removal provides no basis for removal. Moreover, the Court does
not have before it the original complaint or counterclaim for review. Nonetheless, there
does not appear to be a federal question. In addition, an attachment to the Justice of
the Peace Court's March 12, 2014 Order indicates that Plaintiff has a Delaware
address, as does Defendant and, hence, the parties are not diverse.
Because the parties are not diverse and there is no federal question, this Court
does not have jurisdiction over this action. Therefore, the Court will dismiss as moot
the motion to stay (D.I. 5) and will summarily remand the case to the Court of Common
Pleas of the State of Delaware in and for New Castle County pursuant to 28 U.S.C.

§ 1447(c). 1
An appropriate Order will issue.

1

Defendant's Notice of Removal states that this matter was removed from the
Court of Common Pleas. (D.I. 2).

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