Richards v. Belcher
ORDER: IT IS ORDERED that this case is remanded to state court for disposition. IT IS FURTHER ORDERED that the Office of the Clerk of Court shall not immediately certify this Order to the Horry County Magistrate Court. If both parties in the above-captioned case fail to file an appeal of this Order or written objections to this Order (if this Order is treated as a Report and Recommendation) within fourteen (14) days after this Order is filed, the Office of the Clerk of Co urt shall then certify this Order to the Horry County Magistrate Court. If, however, either party files an appeal of this Order or written objections to this Order (if this Order is treated as a Report and Recommendation), the Office of the Clerk of Court, at the end of the fourteen-day period, shall forward the case file and any appeal or objections to a United States District Judge for a final disposition. Signed by Magistrate Judge Thomas E Rogers, III, on 05/18/2017. (dsto, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Jeffrey T. Richards,
Defendant’s Motion to proceed in forma pauperis (ECF No. 3) is GRANTED.
Defendant, proceeding pro se and in forma pauperis, has filed documents in an attempt to
remove a case from state magistrate’s court to this federal district court. The statute governing the
procedure for removal of civil actions, 28 U.S.C. § 1446, requires Defendant to file a notice of
removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure. The Notice must
contain a short and plain statement of the grounds for removal, together with a copy of all process,
pleadings, and orders served upon Defendant. 28 U.S.C. § 1446. Defendant has failed to comply
with either of these requirements under the removal procedure statute. Defendant did not file a
signed notice of removal. Failure to comply with the procedures for removal in and of itself may
warrant remand. Nat’l Union Fire Ins. Co. v. Louth, 40 F. Supp. 2d 776 (W.D. Va. 1999); see also
Ex parte Bopst, 95 F.2d 828, 829 (4th Cir. 1938)(“in removal proceedings the provisions of the
removal statute must be strictly followed, and that procedural matters thus become jurisdictional”).
Defendant did not attach Plaintiff’s Complaint, but it is clear from the filings– including, but
not limited to, identifying the style of the case as that contained in the state court action (including
identifying herself as the Defendant) and the relief Defendant is seeking that the state court “rule to
vacate or show cause be dismissed”– Defendant is attempting to remove an action for ejectment for
failure to pay rent.1 Plaintiff is Defendant’s landlord. Defendant appears to identify defenses or
counterclaims under federal laws, the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 and the
Fair Housing Act, 41 U.S.C. § 3601.
A district court may sua sponte remand a case to state court based on lack of subject matter
jurisdiction. Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). The
presence or absence of federal question jurisdiction is governed by the “well pleaded complaint”
rule. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) and Holmes Group, Inc. v. Vornado
Air Circulation Sys, Inc., 535 U.S. 826, 831 (2002). Federal jurisdiction exists only when a federal
question is present on the face of a properly pleaded complaint. The removing defendant has the
burden of establishing subject matter jurisdiction. Mulcahey v. Columbia Organic Chems. Co., Inc.,
29 F.3d 148, 151 (4th Cir. 1994). Upon the record before the court, there is no federal question
jurisdiction arising from the allegations by the Plaintiff in the state court action.
To the extent Defendant seeks federal question jurisdiction by way of defenses or
counterclaims asserting federal law, such counterclaims do not allow removal of the action. See
Caterpillar, 482 U.S. at 392 and Holmes, 535 U.S. at 831. A plaintiff is master of his complaint and
may avoid federal jurisdiction by relying exclusively on state law. Id. Counterclaims cannot serve
State court records for cause no. 2017-cv-261091850 contained on the public index also
indicate the proceeding is for the purpose of seeking the ejectment of Defendant from Plaintiff’s
property. See generally, http://publicindex.sccourts.org/Horry/PublicIndex/PISearch.aspx (with
search parameters limited by Defendant’s name). The court may take judicial notice of factual
information located in postings on government websites. See In re Katrina Canal Breaches
Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting
that courts may take judicial notice of governmental websites including other courts' records);
Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting
that some courts have found postings on government websites as inherently authentic or selfauthenticating).
as a basis for federal question jurisdiction on removal. See id. Removal to this court in the instant
action is not authorized by 28 U.S.C. § 1441. Therefore, the Court lacks jurisdiction to retain this
Based on the foregoing, IT IS ORDERED that this case is remanded to state court for
disposition. See, e.g., Johnson v. Wyeth, 313 F. Supp. 2d1272, 2004 WL 771050 (N.D. Ala. Apr.
6,2004); Wyatt v. Walt Disney Co., No. 97-116,1999 WL 33117255 (W.D.N.C. July 26,1999);
Bristol-Meyers Squibb Co. V. Safety National Casualty Corp., 43 F.Supp. 2d 734,737 (E.D.Tex.
1999); Vaquillas Ranch Company v. Texaco Exploration & Production. Inc., 844 F. Supp. 1156,AO
72A (Rev.8/82) 1160-1163 (S.D.Tex. 1994)(criticizing the rationale in Giangola v. Walt Disney
World Co., 753 F. Supp. 148 (D.N.J. 1990), and distinguishing Long v. Lockheed Missiles & Space
Co., 783 F.Supp. 249 (D.S.C. 1992)); Holt v. Tonawanda Coke Corporation, 802 F. Supp. 866, 868
(W.D.N.Y. 1991); McDonough v. Blue Cross of Northeastern Pennsylvania, 131 F.R.D. 467
(W.D.Pa. 1990); City of Jackson v. Lakeland Lounge of Jackson. Inc., 147 F.R.D. 122, 124 (S.D.
Miss. 1993)(a remand is “nondispositive and can be determined by a magistrate judge by final
order.”); Unauthorized Practice of Law Committee v. Gordon, 979 F.2d 11, 12-13 (1st Cir. 1992).
But see Vogel v. U.S. Office Products Co., 258 F.3d 509 (6th Cir. 2002); First Union Mortgage
Corp. v. Smith, 229 F.3d 991 (10th Cir. 2000); In re U.S. Healthcare, 159 F.3d 142 (3d Cir. 1998).
To avoid the problems that arose in City of Jackson v. Lakeland Lounge of Jackson, Inc.,
supra, 147 F.R.D. at 123-124, IT IS FURTHER ORDERED that the Office of the Clerk of Court
shall not immediately certify this Order to the Horry County Magistrate Court. If both parties in the
above-captioned case fail to file an appeal of this Order or written objections to this Order (if this
Order is treated as a Report and Recommendation) within fourteen (14) days after this Order is filed,
the Office of the Clerk of Court shall then certify this Order to the Horry County Magistrate Court.
If, however, either party files an appeal of this Order or written objections to this Order (if this Order
is treated as a Report and Recommendation), the Office of the Clerk of Court, at the end of the
fourteen-day period, shall forward the case file and any appeal or objections to a United States
District Judge for a final disposition. Vaquillas Ranch Company v. Texaco Exploration &
Production, Inc., supra, 844 F. Supp. at 1163; McDonough v. Blue Cross of Northeastern
Pennsylvania, supra, 131 F.R.D. at467 [order); Long, 783 F. Supp. 249. [Report and
IT IS SO ORDERED.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
May 18, 2017
Florence, South Carolina
Failure to timely appeal or file specific written objections to this Order will result in waiver
of the right to appeal from a judgment of the District Court based upon such
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