Kapenda v. Parker

Filing 8

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS that this case be REMANDED. Objections to R&R due by 8/17/2018. Signed by Magistrate Judge Kimberly A. Jolson on 8/3/2018. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARIA KAPENDA,
Plaintiff,
v.

Civil Action No. 2:18-cv-593
Judge Michael H. Watson
Magistrate Judge Jolson

KENNETH L. PARKER,
Defendant.
REPORT AND RECOMMENDATION
On December 15, 2017, Plaintiff Maria Kapenda filed a “Complaint to Enforce
Administrative Child Support Order And To Find Obligor in Contempt and/or Liquidate
Arrearages” against Defendant Kenneth L. Parker in the Franklin County Court of Common Pleas.
(Doc. 2). In the Complaint, Plaintiff argues that Defendant “has failed to pay [child support] as
ordered, and has a child support arrearage as of October 31, 2017, of $2452.71 and a cash medical
arrerage of $529.01 for a total of 2,981.71 plus processing charge.” (Id. at 1). On June 14, 2018,
Defendant removed the action to this Court. (Doc. 1).
Upon review, Defendant did not appear to allege any basis for subject matter jurisdiction
in his Notice of Removal. (Doc. 1). Consequently, the undersigned ordered Defendant to show
cause for why this action should not be remanded back to state court for lack of subject matter
jurisdiction. See Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 (6th Cir. 1992) (stating that subject
matter jurisdiction can be raised at any time, by any party or sua sponte by the court).
On August 2, 2008, Defendant filed what appears to be his response to the Show Cause
Order, although he stated that he was filing “this brief in support of his complaint, i.e. claim to

appeal the decision of remandment by magistrate Kimberly A. Jolson.” (Doc. 7 at 2). In his
“response,” Defendant declares that he is “a Moor Aboriginal Indigenous American National” and
“Jurisdiction of this court is invoked under The Zodiac Constitution A©AA222141 I Library of
Congress, Washington, District of Columbia, Constitution I Treaty and laws of the United States
Republic as follows: Zodiac Constitution, Article 4 he Moors, Ela€™s Beya€™s and Alia€™s[.]”
(Id. at 2–3). Defendant also appears to allege various violations of his rights under the U.S.
constitution that do not relate to the underlying child support matter. (See id. at 3–5). Defendant
does not, however, allege any basis for federal jurisdiction as to Plaintiff’s Complaint.
As was previously noted, “a defendant may remove a state court case to federal court only
if it could have been brought there in the first place; that is, if the federal court would have original
jurisdiction over the case.” Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 259 (6th Cir.
1996). The removing party has the burden of establishing that original federal jurisdiction exists.
Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006). If it appears that the federal
district court to which a case was removed lacks subject matter jurisdiction, the case must be
remanded. See, e.g., Woodworth v. Time Warner Cable, Inc., No. 1:15 CV 1685, 2015 WL
6742085, at *1 (N.D. Ohio Nov. 2, 2015) (“Under 28 U.S.C. § 1447(c), cases originally filed in a
state court must be remanded if, at any time before trial, it appears that the federal district court to
which they were removed lacks subject matter jurisdiction.”).
Here, it appears that this removed action lacks subject matter jurisdiction. Further, because
Defendant’s filings are difficult to decipher, remand is the most appropriate action. Beavers v.
DePuy Orthopaedics, Inc., No. 1:11 DP 20275, 2012 WL 1945603, at *1 (N.D. Ohio May 30,
2012) (“In light of federalism and comity concerns, federal courts must strictly construe removal
jurisdiction and resolve all doubts in favor of remand.” (citing Shamrock Oil & Gas Corp. v.

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Sheets, 313 U.S. 100, 108–09 (1941)). Accordingly, it is RECOMMENDED that this case be
REMANDED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). Failure to object to
the Report and Recommendation will result in a waiver of the right to have the district judge review
the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the
decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474
U.S. 140, 152–53 (1985).
IT IS SO ORDERED.

Date: August 3, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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