Mosam v. Mosam

Filing 8

OPINION AND ORDER that this action is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that Plaintiff's Motion to Remand 6 is DENIED. Signed by Judge William S. Duffey, Jr on 4/29/2015. (anc)

Plaintiff, in his Complaint, asserted that the Court has jurisdiction over this
matter under 28 U.S.C. § 1332(a) “due to diversity of citizenship amongst the
parties in this matter as Plaintiff and Defendant are citizens of the nation of India
and the Minor Child at issue is a citizen of the United States of America as he was
born in the State of Georgia.” Complaint ¶ 4. Plaintiff, while initially stating that
his Complaint was being filed “pursuant to applicable state and federal laws that
address the return of children to their home state,” Complaint ¶ 3, asserted only
two counts in his Complaint, both brought under Georgia law.
On April 13, 2015, the Court, after reviewing Plaintiff’s Complaint, issued
its Order addressing the Court’s subject matter jurisdiction over this matter. The
Court noted that Plaintiff alleged that diversity jurisdiction exists because the Child
is a citizen of the United States and the Parties are citizens of India, but that the
Child is not a party to this action. (April 13, 2015, Order, at 2). The Court noted
further that both Plaintiff and Defendant are aliens for diversity purposes, and both
are citizens of the same foreign state and that, therefore, based on the allegations
contained in the Complaint, complete diversity between the Parties does not exist.
(Id. at 2-3) The Court noted also that, to the extent that Plaintiff sought to raise a
claim under the Hague Convention on the Civil Aspects of International Child
Abduction and the International Child Abduction Remedies Act of 1988, Plaintiff

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was required to bring this action in India, the place where, according to the
Complaint, the Child is located. (Id. at 4). The Court ordered Plaintiff to show
cause, on or before April 27, 2015, why this action should not be dismissed for
lack of subject matter jurisdiction.
On April 26, 2015, Plaintiff filed his Motion to Remand, asserting that the
Court lacks subject matter jurisdiction over this action, and requesting that the
Court remand this case to the Superior Court of Spalding County, Georgia. On
April 26, 2015, Plaintiff filed his Response [7] to the Court’s April 13, 2015,
Order, where Plaintiff acknowledges that the Court lacks subject matter
jurisdiction over this action.1
Rule 1447 of the Federal Rules of Civil Procedure allow a district court to
remand a case to State court if it determined that it lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the case shall be
remanded.”). Rule 1447, however, is entitled “[p]rocedure after removal
generally”, and only applies to cases which were originally filed in State court and
subsequently removed to a district court. E.g., E. Sav. Bank, FSB v. Estate of Kirk
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Plaintiff asserts that, if Plaintiff is awarded custody by the Georgia state
court, this Court will have jurisdiction over this matter. The Court does not
consider that issue now, as it is uncontested that the Court, at a minimum, currently
lacks subject matter jurisdiction over this action.
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ex rel. Kirk, 821 F. Supp. 2d 543, 545 (E.D.N.Y. 2011). Plaintiff initiated this
action in this Court, thus, the Court cannot “remand” the case to the Superior Court
of Spalding County, Georgia, or any other State court. To the extent that Plaintiff
wishes to proceed in the Superior Court of Spalding County, Georgia, Plaintiff
must file an action in that court.
As the Court concluded in its April 13, 2015, Order, and Plaintiff
acknowledges in his Motion to Remand and Response, the Court lacks subject
matter jurisdiction over this action.
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that this action is DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Remand [6] is

DENIED.
SO ORDERED this 29th day of April, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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