POTTER v. PHOENIX et al
OPINION. Signed by Judge Robert B. Kugler on 2/2/2016. (dmr)
NOT FOR PUBLICATION
(Doc. Nos. 3, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 15-8457 (RBK/KMW)
CYDNEE PHOENIX, et al,
KUGLER, United States District Judge:
This matter comes before the Court on the Motion to Remand of Plaintiff Kevin Potter
(“Plaintiff”) (Doc. No. 4) and the Motion to Dismiss of Defendant Brett A. Datto (“Defendant”)
(Doc. No. 3). For the reasons expressed herein, Plaintiff’s Motion to Remand is GRANTED,
and Defendant’s Motion to Dismiss is DENIED.
Plaintiff Kevin Potter, proceeding pro se, brought an action against Defendants Cydnee
Phoenix (“Phoenix”), Billie J. Moore (“Moore”), and Brett A. Datto in the Superior Court of
New Jersey, Atlantic County, Law Division, bringing claims of trespass, malicious prosecution,
malicious use and abuse of process by fraud, intentional infliction of emotional distress, and civil
conspiracy. (Compl., Doc. No. 1, Ex. A.) Plaintiff’s claims stem from an alleged incident where
Moore trespassed into Plaintiff’s home, rummaged through his personal property, stole his mail,
and then threatened him with “illicit consequences” if he reported the incident to the police. (Id.
¶ 16.) His malicious prosecution claims are grounded in the claim that Moore and Phoenix
falsely accused him of violating multiple New Jersey statutes, and he also claims that Defendant
Datto misused the legal process to “intimidate, harass[,] and coerce the plaintiff in order to
obtain a collateral advantage over his constitutional rights, liberties[,] and freedoms . . . .” (See
generally, Compl., Counts Two through Eight.)
Defendant Brett Datto, an attorney representing himself in this action, removed Plaintiff’s
suit to this Court on December 4, 2015, alleging that Plaintiff’s Complaint raises questions of
federal law.1 (Doc. No. 1.) On December 11, 2015, Defendant then filed a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can
be granted. (Doc. No. 3.)
On December 28, Plaintiff filed an opposition to Defendant’s motion to dismiss and
moved to remand the case to New Jersey Superior Court, Atlantic County. (Pl.’s Br., Doc. No.
4.) Plaintiff claims that the removal of his suit was unwarranted because his Complaint sounds
exclusively under state law and all parties are residents of New Jersey. (Id. at 2.) Defendant has
conceded, by way of letter to this Court, that this case does not involve a substantial question of
federal law such that jurisdiction is conferred. (Doc. No. 5.) As such, Defendant does not object
to Plaintiff’s motion to remand.
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove an action filed in state court to
a federal court with original jurisdiction over the action. Once an action is removed, a plaintiff
may challenge removal by moving to remand the case back to state court. To defeat a plaintiff’s
motion to remand, the defendant bears the burden of showing that the federal court has
It appears that Defendant has incorrectly cited the relevant removal statutes. He posits that he is removing the case
pursuant to 28 U.S.C. §1442(b) on the basis of jurisdiction under 28 U.S.C. § 1332(a), both of which relate to
diversity jurisdiction. However, neither Defendant’s Notice of Removal nor his Reply to Plaintiff’s Motion to
Remand mention diversity jurisdiction. Rather, each mentions this Court’s jurisdiction in relation to questions of
federal law, which is governed by 28 U.S.C. § 1331, and which may be a basis for removal under § 1441(c).
jurisdiction to hear the case. Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1995)
(citing Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939)). Generally, where the decision to
remand is a close one, district courts are encouraged to err on the side of remanding the case
back to state court. See Abels, 770 F.2d at 29 (“Because the lack of jurisdiction would make any
decree in the case void and the continuation of the litigation in federal court futile, the removal
statute should be strictly construed and all doubts should be resolved in favor of remand.”).
Absent diversity of citizenship, proper removal requires that the underlying state court
complaint present a question of federal law. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). To determine whether an action rests upon a federal claim, courts follow the “wellpleaded complaint” rule and look to the face of the complaint. Id. at 392; Beneficial Nat’l Bank
v. Anderson, 539 U.S. 1, 6 (2003); Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998).
Importantly, the presence of a federal issue in a state claim does not automatically confer federal
jurisdiction. See Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 813 (1986).
Defendant’s Notice of Removal contends that Plaintiff’s Complaint “references”
violations of 28 U.S.C. § 2314 (“Transportation of Stolen Goods”), 18 U.S.C. § 1341 (“Frauds
and swindles”), and 18 U.S.C. § 1961 et seq. (RICO violations). However, Plaintiff’s Complaint
contains no federal causes of action, and notably, Defendant’s motion to dismiss makes no
mention of any federal causes of action save to mention that Plaintiff’s complaint “references”
these causes of action. As Defendant now concedes, this alleged “reference,” is insufficient to
confer federal subject matter jurisdiction on this Court. See Merrell Dow Pharms., 478 U.S. at
813; see also Smith v. Indus. Valley Title Ins. Co., 957 F.2d 90, 93 (“[T]he mere presence of a
federal issue in a state cause of action does not automatically confer federal question
jurisdiction.” (quoting Merrell Dow, 478 U.S. at 813)). Consequently, because the face of
Plaintiff’s Complaint identifies no federal question, this Court lacks subject matter jurisdiction.
As such, Plaintiff’s motion to demand will be granted, and this action will be remanded to the
state court for lack of subject matter jurisdiction.
For the foregoing reasons, Plaintiff’s Motion to Remand (Doc. No. 3) is GRANTED.
This case shall be remanded to the New Jersey Superior Court, Atlantic County, Law Division.
Because the Court lacks subject matter jurisdiction over this case, Defendant’s Motion to
Dismiss is DENIED.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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