Realty Plus Inc/Access Properties v. Brann et al

Filing 3

OPINION AND ORDER: Clerk DIRECTED to REMAND this case to the St Joseph Superior Court, Small Claims Court. Signed by Judge Theresa L Springmann on 9/14/15. (cc: Realty Plus Inc/Access Properties; Barry Brann; Kelly Gollon; St Joseph Superior Court, Small Claims Court with Certified Copy of Opinion and Order and Docket Sheet). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
REALTY PLUS INC/ACCESS
PROPERTIES,
Plaintiff,
v.
BARRY BRANN and KELLY GOLLON,
Defendants.

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CAUSE NO.: 3:15-CV-342-TLS

OPINION AND ORDER
The Plaintiff, Realty Plus Inc/Access Properties initiated eviction proceedings against the
Defendants, Barry Brann and Kelly Gollon, in the St. Joseph Small Claims Court. The
Defendants removed the action to this Court by filing a document they titled Removal of State
Court Case to This Federal Court and a Title 28 U.S.C. Section 1446(d) That Filing Immediately
Stays All State Actions [ECF No. 2]. The Defendants request that the Court assume subject
matter jurisdiction of the state court matter.
“[A]ny 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.A. § 1441(a).Federal courts “are courts of limited jurisdiction and
may only exercise jurisdiction where it is specifically authorized by federal statute.” Evers v.
Astrue, 536 F.3d 651, 657 (7th Cir. 2008) (internal citations omitted). A federal district court has
original jurisdiction in two circumstances. First, a district court has original jurisdiction for all
civil cases “arising under the Constitution, laws, or treaties of the United States,” otherwise
known as federal question jurisdiction. 28 U.S.C. § 1331. Second, a district court has original

jurisdiction for all civil cases where there is diversity of citizenship and where “the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. §
1332.
The federal removal statute provides, in relevant part, that “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c); see also Townsquare Media, Inc. v. Brill, 652 F.3d 767, 768
(7th Cir. 2011). The Court need not wait for a remand motion, but may sua sponte remand a
removal that is defective because of lack of subject matter jurisdiction. Wis. Dep’t of Corrs. v.
Schacht, 524 U.S. 381, 392 (1998). The Court acts upon that authority here.
The Defendants fail to satisfy their burden to establish federal subject matter jurisdiction.
They do not suggest that the requirements for diversity jurisdiction have been met. To determine
if federal question jurisdiction exists, the Court looks to the allegations of a well-pleaded
complaint, which must present a federal question on its face. Burda v. M. Ecker Co., 954 F.2d
434, 438 (7th Cir. 1992). On its face, the Plaintiff’s suit to establish its right to evict the
Defendants and take immediate possession of real property does not present a federal question.
In an attempt to create a federal question, the Defendants assert in the notice of removal that the
Plaintiff has acted in violation of the Constitution and federal statutes in seeking immediate
possession of real property because the Plaintiff was motivated by the Defendants’ race. The
Defendants may intend to assert a counterclaim or a defense based upon these allegations.
However, counterclaims and defenses cannot establish federal question jurisdiction. See Holmes
Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002); Adkins v. Ill. Cent.
R.R. Co., 326 F.3d 828, 836 (7th Cir. 2003). The Defendants “‘may remove only on the basis of

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claims brought against them and not on the basis of counterclaims, cross-claims, or defenses
asserted by them.’” Mortg. Elec. Registration Sys., Inc. v. Rothman, No. 04 C 5340, 2005 WL
497794, at *5 (N.D. Ill. Feb. 28, 2005) (quoting Charles Alan Wright & Arthur R. Miller, &
Edward H. Cooper, Fed. Prac. & Proc. Juris. § 3733 at 253 (3d ed.)). Accordingly, this Court
lacks jurisdiction over the subject matter of the litigation, and there was no basis to remove it
from state court.

CONCLUSION
For the reasons stated above, the Court DIRECTS the Clerk of this Court to remand this
case to the St. Joseph Superior Court, Small Claims Court.
SO ORDERED on September 14, 2015.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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