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.)

·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.

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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