Williams v. McQuaig

Filing 7

REPORT AND RECOMMENDATIONS re remanding 1 Complaint filed by Franklin L. Williams to Superior Court of Ware County. Objections to R&R due by 2/9/2009. Signed by Magistrate Judge James E. Graham on 1/20/09. (slt)

.Th IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DiSTRICT OF G WAYCROSS DIVISION :

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FRANKLiN L. WILLIAMS, Plaintiff, vs. RONNIE H. McQUAIG, Defendant.

CIVIL ACTION NO.: CV508-096

MAGISTRATE JUDGE'S 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 December 17, 2008, Plaintiff filed a Petition for Notice 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 a defendant may remove an action from state to federal court. Shamrock Oil & Gas Corp . v. Sheets, 313 U.S. 100, 104-05 (1941). The purpose of restricting the right of removal to a 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 right to remove this action to federal court. Plaintiffs case should be remanded to the

AO 72A (Rev. 8/82)

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. SO REPORTED and RECOMMENDED, this

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y of January, 2009.

iIES E. GRAF1AM ITED STATES MAGISTRATE JUDGE

AO 72A (Rev. Sl2)