Eckstein v. Brame et al

Filing 4

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED that this matter be REMANDED to the Hamilton County, Ohio Municipal Court. It is further RECOMMENDED that the Court should certify pursuant to 28 U.S.C. 1915(a) that an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny Defendants leave to appeal in forma pauperis. Objections to R&R due by 5/23/2022. Signed by Magistrate Judge Stephanie K. Bowman on 5/9/2022. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:22-cv-00219-MWM-SKB Doc #: 4 Filed: 05/09/22 Page: 1 of 6 PAGEID #: 41

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DALE ECKSTEIN,
Plaintiff,

Civil Action No.1:22-cv-219

vs.

McFarland, J.
Bowman, M.J.

THOMAS BRAME, et al,
Defendants.
REPORT AND RECOMMENDATION
Defendants Thomas Brame and Shirley Brame filed a pro se Notice of Removal in
this Court. Defendants appear to be parties to an eviction action in the Hamilton County
Court of Common Pleas brought by Plaintiff Dale Eckstein. This matter is before the
Court for a sua sponte review of Defendants’ Notice of Removal and documents
submitted in support of removal to determine whether the Court has jurisdiction over this
matter. See 28 U.S.C. § 1915(e)(2)(B); Fed. R. Civ. P. 12(h)(3).
For the reasons that follow, this matter should be remanded back to state court.
The statute creating diversity of citizenship jurisdiction provides that “district courts shall
have original jurisdiction of all civil actions where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of
different States.” 28 U.S.C. § 1332(a). A defendant can remove an action from state court
to federal court if the federal court has original jurisdiction, including diversity of citizenship
jurisdiction, over the case. 28 U.S.C. § 1441(a). 28 U.S.C. § 1446(b) generally requires

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removal within 30 days of service of the initial pleading. Furthermore under 28 U.S.C. §
1446(b)(2)(A), “[w]hen a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or consent to the
removal of the action.” Additionally, “[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c).
A federal court must resolve any doubt concerning the propriety of removal in favor
of state court jurisdiction. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–
09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (calling for strict construction of statutes regulating
the jurisdiction of federal courts); H.R. ex rel. Reuter v. Medtronic, Inc., 996 F.Supp.2d
671, 676 (S.D.Ohio 2014). The defendant bears the burden of establishing that removal
was proper. Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir.2000); see also
Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 572 (6th Cir.2001) (stating that
defendant must prove the amount in controversy for diversity jurisdiction).
This Court lacks subject matter jurisdiction over this removed state court eviction
action. Removal is governed by 28 U.S.C. § 1441 which provides in relevant part: “[A]ny
civil action brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the district
court of the United States for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a). Thus, “[o]nly state-court actions that originally
could have been filed in federal court may be removed to federal court by the
defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The defendant carries
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the burden of showing that removal is proper and that the federal court has original
jurisdiction to hear the case. See Vill. of Oakwood v. State Bank and Tr. Co., 539 F.3d
373, 377 (6th Cir. 2008) (citing Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 45354 (6th Cir. 1996)). The removal statute is to be strictly construed and where jurisdiction
is in doubt, the matter should be remanded to the state court. See Brierly v. Alusuisse
Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999).
The Court cannot discern a basis for federal question jurisdiction in this matter.
District courts have original federal question jurisdiction over cases “arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. In determining
whether an action has been properly removed to federal court, the Court must examine
the face of the state court plaintiff's well-pleaded complaint. Under the well-pleaded
complaint rule, district courts have federal question removal jurisdiction over “only those
cases in which a well-pleaded complaint establishes either that federal law creates the
cause of action or that the plaintiff's right to relief necessarily depends on resolution of a
substantial question of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr.,
463 U.S. 1, 27-28 (1983). In other words, a case arises under federal law when an issue
of federal law appears on the face of the plaintiff's well-pleaded complaint. Caterpillar,
482 U.S. at 392; Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). The plaintiff is the
master of the claim and may avoid federal jurisdiction by exclusive reliance on state
law. See Caterpillar, 482 U.S. at 392. See also Berera v. Mesa Med. Grp., PLLC, 779
F.3d 352, 357 (6th Cir. 2015) (“Under the well-pleaded complaint rule, the plaintiff ‘is
master to decide what law he will rely upon.’”) (quoting Loftis v. United Parcel Serv., Inc.,
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342 F.3d 509, 515 (6th Cir. 2003)). In addition, “it is now settled law that a case
may not be removed to federal court on the basis of a federal defense ... even if the
defense is anticipated in the plaintiff's complaint, and even if both parties concede that
the federal defense is the only question truly at issue.” Caterpillar, 482 U.S. at 393
(emphasis in the original) (citing Franchise Tax Bd., 463 U.S. at 12). See also Beneficial
Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003); Metro. Life, 481 U.S. at 63; Chase
Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 914-15 (6th Cir. 2007).
Defendants have failed to establish this Court has original federal question
jurisdiction over this case. The state court complaint does not show this case arises under
the Constitution or laws of the United States. Defendants appear to contend that Eckstein
violated their civil rights in connection with the state court eviction proceeding. However,
even if Defendants assert a federal defense to the state court eviction action, the
existence of a defense based upon federal law is insufficient to support
removal jurisdiction. Franchise Tax Bd., 463 U.S. at 8-12; Chase Manhattan Mortg.
Corp., 507 F.3d at 914-15. Therefore, Defendants have failed to meet their burden of
showing federal question jurisdiction in this matter. Accordingly, as no basis for federal
jurisdiction exists, this court lacks subject matter jurisdiction.
For the foregoing reasons, it is herein RECOMMENDED that this matter be
REMANDED to the Hamilton County, Ohio Municipal Court. It is further RECOMMENDED
that the Court should certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons
an appeal of any Order adopting this Report and Recommendation would not be taken in
good faith and therefore deny Defendants leave to appeal in forma pauperis.
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s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DALE ECKSTEIN,
Plaintiff,

Civil Action No.1:22-cv-219

vs.

McFarland, J.
Bowman, M.J.

THOMAS BRAME, et al,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to,and shall be accompanied by a memorandum of law in support of
the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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