Shah v. Stephens

Filing 10

ORDER affirming and adopting 5 Memorandum and Recommendations.; denying as moot 2 Motion for Immediate Declaratory and Injunctive Relief; denying 7 Motion for Writ of Mandamus. This matter shall be REMANDED to Mecklenburg County District Court. The Clerk of Court is hereby directed to close this case. Signed by District Judge Robert J. Conrad, Jr on 01/11/2019. (Pro se litigant served by US Mail.)(brl)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-00126-RJC-DSC
BRIANNE STEPHENS,
Plaintiff,
v.
TARIK SHAH
Defendant.

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ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion for Immediate
Declaratory and Injunctive Relief, (Doc. No. 2); the Magistrate Judge’s Memorandum
and Recommendation and Order (M&R), (Doc. No. 5); and Plaintiff’s Objection to the
M&R, (Doc. No. 6). Also before the Court is Plaintiff’s Expedited Petition for Writ of
Mandamus, (Doc. No. 7).
I.

BACKGROUND
Because no parties objected to the factual or procedural history detailed

in the M&R, the facts stated herein are adopted from the M&R. This matter arises
from a child custody case originally heard in Mecklenburg County District Court. A
child custody hearing was held on December 6 and 7, 2017, in which the custody of
DS, Brianne Stephens’s (“Plaintiff”) minor child, was addressed. (See Stephens v.
State, NCWD File No. 3:18-cv-00072-RJC-DSC, Doc. No. 52-1: Temporary Child

Custody Order at 1). Plaintiff was present at the hearing and was represented by
counsel. (Id.). On January 8, 2018, Tarik Shah (“Defendant”), DS’s father, filed a
Motion for Modification of Child Support Order to terminate the child support
payments he had been making to Plaintiff. (Doc. No. 1-1 at 1). On February 8,
2018, District Court Judge Gary L. Henderson entered a Temporary Child Custody
Order awarding temporary physical and legal custody of DS to Defendant. (See
Stephens v. State, NCWD File No. 3:18-cv-00072-RJC-DSC, Doc. No. 52-1 at 5).
Judge Henderson found that Plaintiff was not “a fit and proper person to have
physical custody or contact with the child at this time.” (Id.).
On March 15, 2018, Plaintiff removed the matter to this Court, alleging the
existence of both diversity and federal question jurisdiction. Plaintiff complains
that the state court “without due process, trial and reason, gave physical custody de
facto of minor child DS to Defendant Tarik Shah.” (Doc. No. 1 at 6). On May 15,
2018, Plaintiff filed a Motion for Immediate Declaratory and Injunctive Relief, (Doc.
No. 2), seeking an injunction compelling Judge Henderson to recuse himself. On
July 3, 2018, Magistrate Judge Cayer addressed the issue of federal subject matter
jurisdiction in an M&R. (Doc. No. 5). The M&R found that no federal subject
matter jurisdiction exists and recommended that this Court deny Plaintiff’s Motion
for Immediate Declaratory Injunctive Relief and remand this matter to state Court.
(Doc. No. 5 at 4). Plaintiff filed an Objection to the M&R on July 16, 2018. (Doc.
No. 6). On August 14, 2018, Plaintiff filed an Expedited Petition for Writ of
Mandamus, requesting that this Court order Mecklenburg County District Court to

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abstain from proceeding further in this case until “a final adjudication on the merits
is issued in actions pending before the NC Federal Western District Court.” (Doc.
No. 7 at 3). The Expedited Petition also requested that this Court vacate certain
orders the state court issued in the child custody proceeding. (Id.).
II.

STANDARD OF REVIEW
A district court may assign dispositive pretrial matters to a magistrate judge

for “proposed findings of fact and recommendations.” 28 U.S.C. § 636(b)(1)(A) and
(B). The Federal Magistrate Act provides that “a district court shall make a de novo
determination of those portions of the report or specific proposed findings or
recommendations to which objection is made.” Id. at § 636(b)(1)(C); Fed. R. Civ. P.
72(b)(3); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).

However, “when

objections to strictly legal issues are raised and no factual issues are challenged, de
novo review of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982). De novo review is also not required “when a party makes general
or conclusory objections that do not direct the court to a specific error in the
magistrate judge’s proposed findings and recommendations.” Id. Upon review of the
record, the Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
III.

DISCUSSION
The Court has reviewed the M&R and the record in this case, including

Plaintiff’s Objection to the M&R, which tends to make general and conclusory
objections to the M&R by asking the Court to take “judicial notice” of

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various, unpersuasive cases from other jurisdictions in which parental custody of
minor children was the underlying issue. (Doc. No. 6 at 2–3). Ultimately, the Court
concludes that it has no subject matter jurisdiction over this matter and thus
affirms and adopts the M&R.
The existence of subject matter jurisdiction is a threshold issue the Court
must address before considering the merits of the case. Jones v. Am. Postal
Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). Subject matter jurisdiction is so
limited that federal “[c]ourts have an independent obligation to determine whether
subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010) (internal citations omitted). “No party can waive
[subject matter jurisdiction], or consent to jurisdiction. No court can ignore the
defect; rather a court, noticing the defect, must raise the matter on its own.”
Wisconsin Dept. of Corrections v. Schact, 524 U.S. 381, 389 (1998). The party
asserting federal jurisdiction bears the burden of establishing federal jurisdiction.
Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994).
Here, Magistrate Judge Cayer “notic[ed] the defect” of subject matter
jurisdiction and raised the issue on his own accord. (Doc. No. 5 at 1). “[F]ederal
courts are courts of limited jurisdiction and generally abstain from hearing
child custody matters” because matters of domestic relations are generally within
the province of the state courts. See Cantor v. Cohen, 442 F.3d 196, 202 (4th Cir.
2006). At its core, this case is the appeal of a child custody determination from
state court. Displeased with the result she received in state court, Plaintiff seeks to

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obtain a different result by airing her grievances in a different venue and court
system. This is impermissible.
While the Court is mindful of the latitude extended to the pleadings of pro se
litigants, Haines v. Kerner, 404 U.S. 519, 520 (1972), it cannot act as the pro se
plaintiff’s advocate or develop claims which the plaintiff failed to raise clearly on the
face of her complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978)
(recognizing that district courts are not expected to assume the role of advocate for
the pro se plaintiff). As a result, even a pro se plaintiff’s claim for relief “requires
more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Like plaintiffs who are represented by counsel, a pro se plaintiff must still
“allege facts sufficient to state all the elements of [a] claim.” Bass v. E.I. Dupont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Similarly, a pro se plaintiff must
still prove that subject-matter jurisdiction exists. Here, Plaintiff has not carried her
burden in demonstrating federal subject matter jurisdiction. No amount of latitude
can save Plaintiff’s removal of this child custody action. See, e.g., Cole v. Cole, 633
F.2d 1083, 1088 (4th Cir. 1980); see also Wake County Human Services v. Davis,
2014 WL 820148, at *3 (E.D.N.C. 2014) (remanding a child support case to state
court and explaining that federal courts should generally decline to exercise
jurisdiction over cases involving domestic relations—i.e., divorce, child custody,
alimony, and child support—because “such matters are better handled by the
states, which have the experience to deal with this specific area of law”).

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Accordingly, after a de novo review, the Court finds that this Court has no
original jurisdiction over this action as required by the removal statute, 28 U.S.C.
§ 1441(a). Mecklenburg County District Court has been, and still is, the proper
forum to adjudicate this child custody dispute. Thus, this Court denies Plaintiff’s
Expedited Petition for Writ of Mandamus requesting that this Court order
Mecklenburg County District Court to abstain from proceeding further in the
instant case, vacate previous orders issued by the state court, and provide judicial
clarification. On the contrary, this Court finds that Mecklenburg County District
Court is best suited to handle the instant dispute and that this Court has no
authority to adjudicate Plaintiff’s claims. Remand of this action is therefore
appropriate pursuant to 28 U.S.C. § 1447(c), and thus Plaintiff’s Motion for
Immediate Declaratory and Injunctive Relief, (Doc. No. 2), is denied as moot.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. The Magistrate Judge’s M&R, (Doc. No. 5), is AFFIRMED and
ADOPTED.
2. This matter shall be REMANDED to Mecklenburg County District Court.
3. Plaintiff’s Expedited Petition for Writ of Mandamus, (Doc. No. 7), is
DENIED.
4. Plaintiff’s Motion for Immediate Declaratory and Injunctive Relief, (Doc.
No. 2), is DENIED as moot.
5. The Clerk of Court is directed to close this case.

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Signed: January 11, 2019

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