AMERICAN HOMES 4 RENT, PROPERTIES, LLC v. MUHAMMAD

Filing 9

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/12/2014; that Defendant's application to proceed in forma pauperis (Docket 1 ) is GRANTED for the sole purpose of entering this Order and Recommendation. RECOMMENDED that this case be REMANDED to the General Court of Justice, District Court-Small Claims, in Guilford County, North Carolina for further proceedings. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
AMERICAN HOME,S 4 RE,NT,
PROPE,RTIE,S, LLC,

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Plaintiff,
V

TONI MUHAMMAD,
Defendant.

1:14CY582

ORDER. MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before the Court upon an appltcation to ptoceed in þrma

paaperit

("IFP") (Docket E.ttty 1) by Defendant Toni Muhammad, and under ftivolity teview
pursuant to 28 U.S.C. $1915(e)(2)(B). After review of Defendant's IFP application, the Coutt

will grant Defendant's motion to ptoceed

in

þrrna paaperisl, but for reasons set

foth

below,

this Court recommends that this action be temanded to the state court.

I. INTRODUCTION
OnJuly 11,201,4, Defendant filed an IFP application and notice of temoval seeking
to remove a summary ejectment action brought against Defendant in the Magistrate Cout
of Guilfotd County, North Carohna. (Docket Entdes 1,2.) Defendant

seeks temoval based

upon Plaintiff American Homes 4 Rent Ptoperties, LLC's ('AH4R") alleged violation of the
Fedetal Fair Debt Collection Ptactices Act (FDCPA), 15 U.S.C. S 1692, et seq., Rule 60

of

Based upon Defendant's representations to the Court, Defendant has shown he is unable to pay
fees and costs associated with said action. This status will be granted fot the sole purpose of
entering this Order and Recommendation.
1

the Federal Rules of Civil Procedute and 42 U.S.C.

II.

S

3631.

STANDARD OF REVIEW
The Court is required to dismiss frivolous or malicious claims, and any complaint that

fails to state a claim for upon which telief can be gtanted. 28 U.S.C. $ 1915(e)(2)@); Michaa
t,., Charleston

Coanfit5.C.,434tr.3d725,728 (4thCn.2006). "Dismissal of an action. . . is

apptopriate when

it lacks an argttable basis in law or f^ct."

Jones u. Sternheimer,3ST

F. App'*

366,368 (4th Cir. 201,0). A frivolous complaint "lacks an argoable basis in either law ot in
fact." Neitqke u. lWillian¡ 490 U.S. 31,9,325 (1989). Âs a part of its review, the Court may
also consider the question of subject matter jurisdiction

.

See l-.ouem u. Edwards,

190 F.3d 648,

654 (4th Cn. 1,999) (holding that "[d]etetmining the question of subject mattet jurisdiction at

the outset of the litigation is often the most efficient procedure"); IYrìght u. Hagin¡ No.
5:09-CV-551-D, 2010 U.S. Dist. LEXIS 50264, at *8, 201,0WL2038806, atx2-3 (E.D.N.C.
Mar. 1.1.,201,0) (dismissing complaint on basis of lack of subject matter jurisdiction as part of
district court's ftivolity review under 28 U.S.C. S 1915) (citations omitted)).

A defendant may remove

a câse from state court

to federal coutt in instances where

the fedetal coutt is able to exercise original judsdiction ovet the matter. 28 U.S.C. $ 1aa1(a).
The temoval statute ptovides in televant part:

(a) Any civil action btought in a state court of which the district courts of the
United States have otiginal jurisdiction, may be removed by the defendant or
the defendants, to the district court of the United States fot the district and
division embracing the place whete such action is pending.

Any civil action of which the disttict courts have otiginal jurisdiction
founded on a claim or right atising under the Constitution, treaties ot laws of
the United States shall be temovable without tegard to the citizenship ot
tesidence of the parties. ,\ny othet such action shall be temovable only if
none of the paties in intetest propetly joined and served as defendants is a

þ)

2

cilzen of the State in which the action is brought.
28 U.S.C. 1441,(a-tt). Federal courts thus have otiginal judsdiction over primarily two types

of cases: (1) those involving

federal questions and

Ø

those involving diversity of

citizenship. 28 U.S.C. $ 1332(a). Removal jurisdiction is stictly consttued against temoval
and

in favor of temand. Id.; rce also Cheshìre

1098, 1102 (D.S.C. 1990)

favor

of

L.ouett,

u. Coca-Cola

("If federal jurisdiction

BottlingAf;liand, 1nc.,758 F. Supp.

is in doubt, such doubt must be tesolved in

state court jurisdiction and the case remanded."); Deutsche Ban/< Nat. Tra¡t Co.

C/A No.

3:12-1819-MBS-SVH, 201,2

WL

7070324, at

x3 (D.S.C. Arg. 24,

u.

201,2)

(same),

In

assessing

the ptopriety of temoval, the rules for determining whethet

^

contÍoversy "arises under" federal law, thus cteating federal question jutisdiction, are well

established. First, federal law must be an "essential" element

of the plaintiffs

cause

of

action. Cølþ u. First Nat'l Bank ìn Merìdìan,299 U.S. 109, 1.12 (1,936). Next, the federal
question which is the ptedicate fot removal must be "ptesented on the face of the plaintifls

properly pleaded complaint." Nuet u. Regiont Bank of Loaisiana, 522 U.S. 470, 475 (1998)
(quoting Caterpillar Inc. u. IYilliams, 482 U.S. 386, 392 (1,987));

rce

aln Calþ,299 U.S. àt

1.1.2-1.3

("To bring a case within the [federal-questìon temoval] statute, a tþht or immunity created
by the Constitution or laws of the United States must be an element, and an essential one,

of

the plaintifPs cause of action . . . and the controversy must be disclosed upon the face of the

complaint, unaided by the answer
absent diversity jutisdiction,

a

ot by the petition for temoval."). "Âs a general de,

case

will not be removable if the complaint does not

affrmatively allege a fedetal claim." Benefldal l\at'/ Bank

J

u.

Anderson,539 U.S. 1,, 6 (2003).

Accotdingll, the federal claim or right that provides the predicate for removal cannot

^ppe

t

for the ftst time in a defendant's answer by way of defense, nor is it suffìcient for the federal
question

to enter the case as a countetclaim asserted by a defendant. 14B CHARLES

ALAN ìØRIGHT &.\RTHUR R. MILLER, FE,DE,RAL PRACTICE, AND PROCEDURE,
S 3722, pp. 402-14 (3d ed. 1998

&

S.tpp. 2008); :ee Caterþillar [nc.,484 U.S. ât 399 (.'[A]

defendant cannot, merely by injectinga federal questìon into an action that asserts what is

plainly a state-law claim, transfotm the action into one arising under federal law, thereby
selecting the forum in which the claim shall be litigated."); Ga/þ,299 U.S. at11.3;
u. l-amb, 427

¡ee also

Hant

F.3d 725 (10th Cit. 2005) (vacating dismissal and ordering remand to state

court, holding that coutt lacked judsdiction over custody dispute, even

if

defendant sought

to vindicate fedetal civil and constitutional dghts by way of defense or counterclaim); Tøkeda
u. Northwe¡tern

Nat'l Ufe Ins. C0.,765 F.2d 815, 822 (9th Cir. 1985) (removability cannot

be

created by defendant pleading a countetclaim ptesenting

a federal question). Third,

federal question taised must be a substantial one. Hagam

Leuine,415 U.S. 528,536 (1,974).

Finally, the party seeking temoval beats the burden
Phillþ:

Petroleam Co. u. Texaco, Lnc,,415

u.

of

the

establishing federal judsdiction.

U.S. 125, 127-28 (197\; Malcahe1 u. Colambia Organic

Chem¡. Co., 1ruc.,29 F.3d 1,48, 151 (4th

Cit. 1,994). Where a court lacks subject matter

jurisdiction, "the court may entet a temand ordet wa tþonte." Ellenbarg u. Sþørtan Motor¡
Chassis,Inc.,51,9 F.3d 1.92,196 (4th Cir. 2008) (emphasis

III.

in original).

DISCUSSION

In the present case, Defendant

has removed this case ftom state court

County, whete AH4R filed a summary ejectment action against Defendant.

4

(See

in Guilford
Complaint,

Docket Etttty 4.) The Complaint indicates that Defendant defaulted on

failing to p^y rent due fot the month of June 2014.
intervention to be put back

a lease agreement

Id. AH4R thereafter

by

sought court

in possession of the leased premises. Id. In his notice of

temoval, Defendant states that this Court has "otiginal, concurrent, and or supplementaty
judsdiction ovet this cause of action, pursuant to28 USC S 1,446, and 15 UsC1.692, rule 60

of the

fedetal rule

of civil

Ptocedute, including but not limited

to the Bill of

Rights."

(l'Jotice of Removal, Docket Entty 2 at 1,.) However, nothing in the state court Complaint
suggests

that this Court has jurisdiction over this action. In his notice of removal,

Defendant does not allege that the parties are diverse2, or that the amount in controversy
exceeds $75,000. 28 U.S.C. $ 1332(a). Furthermore, Defendant indicates

sheet that he is

a cittzen of North Carolina (Docket Entty 8), and S 1441þ) bars removal

based upon diversity judsdiction

as defendants
S 1441(bX2);

on the civil cover

is a

ctlJzen

"if

any

of the parties in interest propedy joined and served

of the State in which

ITT Indøs. Credit Co. u. Dørango

Crøsher¡

such action

is brought." 28

U.S.C.

[nc.,832tr.2d307,308 (4th Cir,

1987)

("Section 1,441,þ) fotbids removal of a suit on the basis of diversity where a defendant is

a

cittzen of the state in which suit is brought.")

It
face

appears that Defendant assetts judsdiction based upon a federal question, but the

of the Complaint does not

assert

a fedenl question. In his notice of

removal,

Defendant states that AH4R is in violation of the Federal Debt Collection Practices Act, and

that the dispossessory proceedings violate the 14th Âmendment. (I.{otice of Removal,

2 Defendant indicates on his cj.vil cover sheet that,\H4R is incoqporated and has a principal place
of business in another state. (Docket Entry B.) Even if true, as discussed above, Defendant's
citizenship in the forum state bars removal under S 1441(b).
5

Docket

Enty 2 at 1-2.) l7hether by defense ot

fedetal-question jurisdiction

is insufficient.

^s ^

countetclaim, this attempt to create

Caterpillar Inc., 484 U.S.

^t

399.

Because

Defendant has not shown a legitimate basis for temoval of this action to federal court so

âs

to create original jurisdiction in this Court, the undetsigned recommends that this action be
temanded back to state court.

IV. CONCLUSION
For the reasons stated herein,

IT IS HEREBY ORDERED that Defendant's

application to ptoceed in þrrza þaaperh (Docket 1) is GRANTED fot the sole purpose

of

enteting this Order and Recommendation.

IT IS FURTHER RECOMMENDED

that this case be REMANDED to the

Genetal Court of Justice, District Coutt-Small Claims, in Guilford County, Notth Carchna

for furthet proceedings.

Joe L. Webstet
U ted States Magistrate Judge

August

,201,4

Durham, Notth Caroltna

6