Dietrich et al v. Hagner
ORDER adopting 5 REPORT AND RECOMMENDATIONS re 3 MOTION for Leave to Proceed in forma pauperis filed by Judithann Hagner. This case is REMANDED to the Circuit Court of the Eighteenth Judicial Circuit, in and for Seminole County Florida. The Clerk is DIRECTED to close the file. Signed by Judge Roy B. Dalton, Jr. on 3/13/2018. (ctp)(JLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
SUSAN DIETRICH; LINDA BROWN;
ELIZABETH RAMON; and RITA
Case No. 6:18-cv-225-Orl-37TBS
Before the Court is U.S. Magistrate Judge Thomas B. Smith’s Report and
Recommendation. (Doc. 5 (“R&R”).) Defendant objected to the R&R (Doc. 6
(“Objection”)), to which Plaintiffs did not respond. For the following reasons, the
Objection is overruled and the R&R is adopted.
Plaintiffs—employees of the Clerk of Court of Seminole County, Florida—initiated
this action in state court, alleging that Defendant continues to file frivolous lawsuits
concerning the suspension of her Florida identification card. (See Doc. 2.) Thereafter,
Defendant—proceeding pro se—filed a shambolic notice of removal purporting to invoke
the Court’s federal question jurisdiction by accusing Plaintiffs of corruption and making
offhand references to constitutional amendments and a non-existent Florida statute.
(Doc. 1 (“Notice”).)
In addition, Plaintiff moved to proceed in forma pauperis (Doc. 3 (“IFP Motion”).)
On referral, Magistrate Judge Smith recommends that the Court deny the IFP Motion, as
the Court lacks jurisdiction and remand the case for improvident removal. (Doc. 5.) After
Magistrate Judge Smith issued his R&R, Plaintiff objected (Doc. 6) and filed a Motion to
Sign Order to Enforce Judgment (Doc. 8 (“Motion to Enforce Judgment”)).
When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 513 (11th Cir. 1990).
Although lacking in clarity, the Objection appears to rest on the argument that
Defendant has properly invoked the Court’s federal question jurisdiction by purporting
to raise claims that arise under the U.S. Constitution.1 (See Doc. 6, pp. 1–5.) The obvious
flaw in such an argument is that the wrongs she allegedly suffered are irrelevant. So her
Defendant does not attempt to invoke the Court’s alternative basis for subject
matter jurisdiction—diversity jurisdiction. (See Doc. 1). Any attempt to do so would be
futile, as all parties appear to be citizens of the State of Florida. (See Doc. 2, ¶¶ 2, 3, 6.)
allegations, which are completely untethered to the Complaint, have no place in the
Court’s removal analysis.
As Magistrate Judge Smith points out, where a defendant removes on the basis of
federal question jurisdiction, “the plaintiff’s complaint [must establish] that the case
‘arises under’ federal law.” (Doc. 5, p. 4 (quoting Franchise Tax Bd. V. Constr. Laborers
Vacation Trust, 463 U.S. 1, 10–11 (1983).) No federal question appears on the face of
Plaintiffs’ Complaint. (See Doc. 2.) Absent a federal question, Defendant lacked any
objectively reasonable basis to remove this action. Consequently, the Court lacks
jurisdiction. So the Objection is due to be overruled, the IFP Motion is due to be denied,
and this case is due to be remanded. See 28 U.S.C. § 1447(c). Because the Court lacks
jurisdiction, it may not adjudicate Plaintiff’s request in the Motion to Enforce Judgment,
so this too is due to be denied.
Accordingly, it is ORDERED AND ADJUDGED as follows:
Defendant’s Objection to Report and Recommendation (Doc. 6) is
U.S. Magistrate Judge Thomas B. Smith’s Report and Recommendation
(Doc. 5) is ADOPTED, CONFIRMED, and made a part of this Order.
Defendant’s Application to Proceed in District Court Without Prepaying
Fees or Costs (Doc. 3) is DENIED for lack of jurisdiction.
Plaintiff’s Motion to Sign Order to Enforce Judgment (Doc. 8) is DENIED
for lack of jurisdiction.
This case is REMANDED to the Circuit Court of the Eighteenth Judicial
Circuit, in and for Seminole County Florida.
The Clerk is DIRECTED to close the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on March 13, 2018.
Pro se party
Counsel of Record
The Circuit Court of the Eighteenth Judicial Circuit,
in and for Seminole County Florida.
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