Scardina v. Martin

Filing 27

ORDER denying 9 Motion for Issuance of Preliminary Relief; denying 14 Motion to Remand; and finding as moot 24 Motion to Remand. Signed by US District Judge Terrence W. Boyle on 11/9/2017. (Stouch, L.)

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·IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:17-CV-488-BO JOHN M. SCARDINA, Plaintiff, v. PATRICIA H. MARTIN, et al., Defendants. ) ) ) ) ) ) ) ORDER This cause comes before the Court on defendant's motion to remand [DE 14], defendant's supplemental motion to remand and motion to dismiss [DE 24], and a motion "For Issuance of Preliminary Relief in the Alternatives" by plaintiff. [DE 9]. The matter has been fully briefed and is ripe for ruling. For the reasons discussed below, plaintiffs suit is dismissed without prejudice. It appears that plaintiff, proceeding prose, attempted to "remove" an existing child custody action between him and his ex-wife here to federal court, and then append that so-called removal With allegations of constitutional violations against his ex-wife and several other participants, including his ex-wife's family law attorney and the judge overseeing the case. To begin, a plaintiff cannot remove a case from state to federal court, nor can a defendant remove a case on the basis of a counterclaim. 28 U.S.C. § 1441; Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Franchise Tax Bd ofCal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 14 (1983). Second, an action over which the court lacks subject-matter jurisdiction must be dismissed. Fed. R. Civ. P. 12(b)(l); Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). Third, federal courts have no original jurisdiction to hear state law claims absent diversity jurisdiction. 28 U.S.C. § 1332; Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836, 848 n.l (4th Cir. 1974). Fourth, federal courts have no jurisdiction over child-custody and similar family law matters, even in the presence of diversity jurisdiction. Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980). Finally, if a suit were properly filed in or removed to this Court, it would need to be accompanied by service of process and be timely. See 28 U.S.C. § 1446(a)- (b). What plaintiff has created here in his series of filings is not a removal, and therefore the action is dismissed. To the extent plaintiff would like to bring a lawsuit on the basis of a federal question, such as an allegation of a constitutional violation, he remains free to do so, as this dismissal is without prejudice. Plaintiff is encouraged to remember that while pro se litigants are entitled to a certain level of lenience, they are still required to follow the Federal Rules of Civil Procedure and the Local Rules. See Crisp v. Allied Interstate Collection Agency, 149 F.Supp.3d. 589, 592 n.4 (M.D.N.C. 2016). Defendant's motion to remand [DE 14] is DENIED because something that was never actually removed cannot be remanded. Plaintiffs motion [DE 9] is DENIED. Defendant's motion to dismiss [DE 24] is DENIED as moot. Plaintiffs suit is DISMISSED WITHOUT PREJUDICE. The clerk is directed to enter judgment and close the case. SO ORDERED, this the _!1_ day of November, 2017. RRENCE W. BOYLE UNITED STATES DISTRIC

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