The Housing Authority of the City of South Bend, Indiana v. Herndon

Filing 21

ORDER: This case is REMANDED to the Superior Court of St. Joseph County, Indiana pursuant to 28 U.S.C. § 1147(c). The 2 motion for leave to proceed in forma pauperis and all other pending motions are DENIED AS MOOT. Signed by Senior Judge James T Moody on 3/31/2016. cc: Superior Court St. Joseph County along with cert. copy of docket, Cynthia Herndon (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
HOUSING AUTHORITY OF SOUTH BEND, )
and JOANNE WATFORD,
)
)
Plaintiffs,
)
)
v.
)
)
CYNTHIA M. HERNDON
)
)
Defendant.
)

No. 3:15 CV 256

OPINION AND ORDER
I.

BACKGROUND
Cynthia Herndon, who is pro se, has filed a motion for leave to proceed in forma

pauperis (DE # 2) and a notice of removal of an action filed against her in the St. Joseph
County Superior Court (DE # 1). Herndon has included a court document relating to an
application for immediate possession of real property under the cause number
71D011505-SC-005675. (DE # 1-2.) The plaintiff in that action, the Housing Authority of
South Bend, Indiana (“HASB”), seeks possession of a rental property located at 3602
Edison Road. (DE # 1-1.) In simple terms, it is an eviction case. According to Herndon,
this case is removable to federal court because it is related to a housing discrimination
case that she had previously filed against HASB. (DE # 1). That case, No. 3:15 CV 169, is
currently pending before this court.
HASB Filed a motion to remand the state court action the St. Joseph County
Superior Court. (DE # 4.) Herndon filed a response to this motion (DE # 5) as well as a
motion seeking leave to file a counterclaim against HASB (DE # 18). For the following

reasons, this case is remanded to the Superior Court of St. Joseph County and the
motion for leave to proceed in forma pauperis is denied as moot.
II.

DISCUSSION
In cases of removal, 28 U.S.C. § 1147(c) obliges the district court to remand a case

if it lacks subject-matter jurisdiction. In determining whether removal is proper under
28 U.S.C. § 1441, a district court must construe the removal statute narrowly and
resolve any doubts in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th
Cir. 1993); see also Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 108 (1941). In general,
federal courts have subject-matter jurisdiction over two types of cases: (1) cases “arising
under the Constitution, laws or treaties of the United States,” 28 U.S.C. § 1331; and (2)
cases between citizens of different states where the amount in controversy exceeds
$75,000, 28 U.S.C. § 1332. Additionally, the federal officer removal statute, 28 U.S.C.
§ 1442, permits removal in limited situations such as a civil action or criminal
prosecution against an officer or agency of the United States.
The main thrust of Herndon’s argument is that removal is proper because the
eviction involves the same matters as her housing discrimination case. (DE # 5.)
However, a state court eviction does not arise under the Constitution, laws or treaties of
the United States. Kubiak v. Meltzer, 2013 WL 1114203 at * 1 (N.D. Ill. March 15, 2013).
Even though, broadly speaking, the two suits may center around the same dispute, the
two causes of action are separate and distinct from one another. The mere fact that this

2

court maintains jurisdiction over the housing discrimination case does not create
jurisdiction over a case that arises under state law. Id.
This remains the case even if, as HASB anticipates (DE # 4 at 4), Herndon’s
defense to the eviction invokes the same federal claims as her discrimination case.
Under the long-established “well-pleaded complaint rule” a case will not be removable
if the complaint does not affirmatively allege a federal claim. Fedor v. Cingular Wireless
Corp., 355 F.3d 1069, 1071 (7th Cir. 2004) (citing Beneficial Nat’l Bank v, Anderson, 539 U.S.
1 (2003)). Thus, even though a federal defense to the eviction may be available to
Herndon, it nevertheless does not provide the basis for removal. Id. The same goes for
Herndon’s attempt fo file a counterclaim against HASB. (DE # 18.) “[A]
counterclaim–which appears as part of the defendant’s answer, not as part of the
plaintiff’s complaint–cannot serve as the basis for “arising under” jurisdiction.” Holmes
Grp., Inc. v. Vornado Air Sys., Inc., 535 U.S. 826, 831 (2002).
Though Herndon also nominally invokes diversity jurisdiction (DE # 5 at 2), she
does not, nor can she, present any argument that jurisdiction exists under 28 U.S.C.
§ 1332. Both Herndon, and HASB are citizens of the state of Indiana. Moreover, the
value of the possession of the real estate, estimated at $2,000 (DE # 1-1), falls well short
of the $75,000 amount-in-controversy requirement of § 1332. Therefore, removal on the
basis of diversity jurisdiction is not appropriate in this case. 1

1

Even if the court was to consider Herndon’s $1.5 million dollar counterclaim, it
would not alter the fact that both she and HASB are citizens of Indiana.
3

Instead, it appears that what Herndon intended by her reference to diversity of
citizenship was, instead, an invocation of the federal officer removal statute, 28 U.S.C.
§ 1442. (DE # 5 at 2.) She argues that, because HASB receives federal funding from the
U.S. Department of Housing and Urban Development, it is a federal agency for
purposes of § 1442. (Id. at 2-3.) This argument is likewise unavailing.
The federal officer removal statute states as follows: “A civil action or criminal
prosecution that is commenced in a state court and that is against or directed to any of the
following [federal officers or agencies] may be removed by them to the district court of
the United States . . . .” 28 U.S.C. § 1442(a) (emphasis added). Thus, by its own terms,
the removal statute is necessarily limited to federal actors who are both being sued (or
prosecuted) and are choosing to invoke this statute on their own behalf. In the present
case, HASB is neither the defendant, not is it the party seeking to remove the case to
federal court. Quite simply, it is not within Herndon’s authority to invoke removal
under § 1442.
That is in addition to primary defect in Herndon’s invocation of the removal
statute which is that the Housing Authority of South Bend is not a federal agency. The
fact that HASB may receive some federal funding does not transform it into a federal
agency for purposes of removal. There are limited situations where the removal statute
covers non-federal parties who are “acting under” a federal official. 28 U.S.C.
§ 1442(a)(1);Venezia v. Robinson, 16 F.3d 209, 211-12 (7th Cir. 2004). However, Herndon
cannot establish that this caveat applies to the present case. see Parks v. Guidant Corp.,

4

402 F.Supp.2d 964, 967 (N.D. Ind. Nov. 21 2005) (“to remove a case to federal court
under § 1442(a)(1) a private party must: (1) have acted under the direction of a federal
agency or officer; (2) raise a colorable federal defense; and (3) demonstrate a causal
nexus between the federal direction and the conduct in question”). Because the court
lacks any basis for jurisdiction over the state court action, removal is inappropriate and
the matter must be remanded to state court.
III.

CONCLUSION
For the foregoing reasons, this case is REMANDED to the Superior Court of St.

Joseph County, Indiana pursuant to 28 U.S.C. § 1147(c). The motion for leave to proceed
in forma pauperis (DE # 1) and all other pending motions are DENIED AS MOOT.

SO ORDERED.
Date: March 31, 2016
s/ James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

5