Williams v. Eaves

Filing 11

REPORT AND RECOMMENDATIONS remanding to Ware County Superior Court 1 Petition to remove case filed by Franklin L. Williams. Objections to R&R due by 12/29/2008. Signed by Magistrate Judge James E. Graham on 12/8/08. (slt)

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IN THE UNITED STATES DISTRICT COIJEC - pj 3:29 FOR THE SOUTHERN DISTRICT OF GEOGI WAYCROSS DIVISION OF GA.

FRANKLIN L. WiLLIAMS, Plaintiff, CIVIL ACTION NO.: CV508-071 MARTIN H. EAVES, Defendant.

ORDER AND MAGISTRATE JUDGES REPORT AND RECOMMENDATION Plaintiff, an inmate currently incarcerated at Men's State Prison in Hardwick, Georgia, filed a complaint in the Ware County Superior Court. On September 24, 2008, Plaintiff filed a Motion of Removal seeking to proceed in this Court. The federal removal statute, in pertinent part, 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) (emphasis added). In accordance with the plain language of this statute, only defendants may remove an action from state to federal court. Shamrock Oil & Gas Corn. v. Sheets, 313 U.S. 100, 104-05 (1941). The purpose of restricting the right of removal to the defendant is to restrict removal to the party who had no choice in selection of the forum. Plaintiff fails to show any reason why, as a plaintiff, he has any

AO 72A (Rev. 8/82)

right to remove this action to federal court. Plaintiff's case should be remanded to the Superior Court of Ware County, as Plaintiff lacks standing to remove under 28 U.S.C. §1441(a). Accordingly, it is my RECOMMENDATION that this action be remanded to the Ware County Superior Court. Plaintiff has filed a Motion for Demand for Jury Trial. That motion is DISMISSED. SO ORDERED and REPORTED and RECOMMENDED, this ? Uay of December, 2008.

IES E. GRAHAM ITED STATES MAGISTRATE JUDGE

AO 72A (Rev. 8182)