Flagstar Bank, FSB v. Pinnex et al
ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 8 Report and Recommendation and remanding the case to the Court of Common Pleas for Calhoun County for lack of subject matter jurisdiction. Please note: The attorneys are responsible for supplementing the state court record with all documents filed in federal court. Signed by Honorable J Michelle Childs on 7/6/2017. (asni, ) Modified to edit text on 7/6/2017 (asni, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Flagstar Bank, F.S.B.,
Ruby Elaine Pinnex and Mortgage )
Electronic Registration Systems,
Inc., as nominee for Homecomings )
Financial Network, Inc.,
Civil Action No.: 5:17-cv-01416-JMC
ORDER AND OPINION
This matter is before the court pursuant to Magistrate Judge Shiva V. Hodges’ Report and
Recommendation (ECF No. 8), filed June 9, 2017, recommending that the case be remanded to
the Court of Common Pleas in Calhoun County, South Carolina. Pro se Defendant Ruby Elaine
Pinnex (“Pinnex”) filed timely objections (ECF No. 11) and an Amended Notice of Removal.1
(ECF No. 12.) For the reasons set forth below, the court ADOPTS the Magistrate Judge’s
Recommendation and REMANDS the case to the Calhoun County Court of Common Pleas for
lack of subject matter jurisdiction.2
I. PROCEDURAL BACKGROUND
On May 31, 2017, Pinnex filed a Notice of Removal (ECF No. 1) seeking to remove a
state mortgage foreclosure action associated with property located at 204 Baronet Lane, Elloree,
South Carolina 29047. (ECF No. 1-7 at 6-11.) Pinnex alleged that she removed the action “for a
Pinnex titled the document an Amended Complaint for Removal. (See ECF No. 12.)
Plaintiff’s pending Motion to Remand (ECF No. 14), and Pinnex’s pending Motion for a
Temporary Restraining Order (ECF No. 15) and pending Motion to Strike (ECF No. 16) are not
ruled upon, as the court adopts the Magistrate Judge’s Recommendation that it does not have
jurisdiction over this case.
Right to Review pursuant to” 5 U.S.C. § 702. (ECF No. 1-1 at 1.) Pinnex further alleged that
removal was proper as Plaintiff
has brought this action against me into an administrative court, a foreign
jurisdiction, in which this is a violation of a Treaty known as The Articles of
Confederation and of the Expatriation Act of 1868. I also believe that they are
also in violation of the Foreign Registration Act, Title 22 USC 611 and have filed
a false claim with counterfeit securities against me.
(Id.) Pinnex also claimed the court has jurisdiction under diversity citizenship under the theory
that her citizenship is “American” generally, but not of South Carolina specifically. (Id.)
On June 9, 2017, the Magistrate Judge issued a Report and Recommendation
recommending that this court remand the case to the Court of Common Pleas in Calhoun County.
(ECF No. 8.) Pinnex filed timely objections and an Amended Notice of Removal (ECF Nos. 11,
12) on June 20, 2017.
II. LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive weight. The responsibility to make a
final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
The court is charged with making a de novo determination of those portions of the Report to
which specific objections are made. See 28 U.S.C. § 636(b)(1).
Any party may remove a state court action to federal district court pursuant to 28 U.S.C.
§ 1441 where the state action could have been originally filed there. See Darcangelo v. Verizon
Commc’ns, Inc., 292 F.3d 181, 186 (4th Cir. 2002). A case may be originally filed in a federal
district court either under 28 U.S.C. § 1332 for diversity of citizenship and an amount in
controversy greater than $75,000.00 or under 28 U.S.C. § 1331 where it arises under a federal
question. A federal court should remand the case to state court where no federal subject matter
jurisdiction is evident from the face of the Notice of Removal and any state court pleadings
provided. Ellenburg v. Spartan Motor Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). Courts of
this circuit have held that removal statutes favor remand where possible and are construed
against removal jurisdiction. See, e.g., Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.
Supp. 1098, 1102 (D.S.C. 1990); Bellone v. Roxbury Homes, Inc., 748 F. Supp. 434, 436 (W.D.
Va. 1990). Where subject matter jurisdiction is at issue, “courts are obligated to consider sua
sponte issues.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012).
Upon her review, the Magistrate Judge observed that Pinnex seeks removal, but fails to
“identify a viable basis for jurisdiction.” (ECF No. 8 at 2.) The Magistrate Judge observed that
“[t]he essential allegations contained in the complaint do not allege that the case is one ‘arising
under the Constitution, laws, or treaties of the United States’” and “there are no federal statutes
referenced in the complaint.” (Id. at 3.) Moreover, Pinnex failed to cite to any federal statute,
law, or act in support of the theory that the complaint raises a federal question. (Id.) The
Magistrate Judge further observed that Pinnex was not eligible to remove the case on the basis of
diversity because she is a citizen of South Carolina, the forum state. (Id.)
Pinnex timely objected, however her objections are vague, nonspecific, and fail to
address the deficiencies laid out by the Magistrate Judge. (ECF No. 11.) In addition to her
objections, Pinnex also timely filed an Amended Notice of Removal.3 (ECF No. 12.) In the
It is generally accepted that a party may amend their Notice of Removal without requesting
leave from the court when done within the first thirty days after initial service. E.g., Thompson v.
Gillen, 491 F. Supp. 24, 27 (E.D. Va. 1980); Garza v. Midland Nat’l Ins. Co., 256 F. Supp. 12,
15 (S.D. Fla. 1966). Here, Pinnex timely amended her Notice of Removal prior to June 31, 2017.
(ECF No. 1 at 2.)
Amended Notice of Removal, Pinnex makes several arguments regarding subject matter
First, Pinnex raises the issue of whether “Orders of an Administrative Court” are
enforceable. (ECF No. 12 at 1.) The court construes this as an inquiry as to whether orders from
the state courts of South Carolina are enforceable. This is clearly not a federal question. This
court, as a federal district court is barred from reviewing or overturning or “declaring
unenforceable” any state court decision by overwhelming Supreme Court precedent and the
United States Constitution. E.g., D.C. Cir. v. Feldman, 460 U.S. 463, 474 (1983) (federal courts
have no jurisdiction over the proceedings of state courts); Rooker v. Fidelity Trust Co., 263 U.S.
Next, Pinnex seeks to raise a federal question as to whether 22 U.S.C. §§ 611, 612 are
“still applicable in the United States.” (ECF No. 12 at 2.) This is not a federal question because
22 U.S.C. §§ 611 and 612, as used for the purposes of legal proceedings, are tools of application
and not interpretation and, therefore, fail to raise federal questions. Merrell Dow Pharms. Inc. v.
Thompson, 478 U.S. 804, 808 (1986).
Finally, Pinnex seeks to raise as a federal question the issue of standing. (ECF No. 12 at
3.) A party’s standing to sue for recovery of property in a foreclosure procedure wholly governed
by state law does not raise any federal questions.
In assessing the foregoing, the court observes that while “in certain cases federal-question
jurisdiction will lie over state-law claims that implicate significant federal issues,” Plaintiff’s
Complaint raised no such issue. Grable & Sons Metal Prods., Inc. v. Darue Eng’g and Mfg., 545
U.S. 308, 312 (2005). Specifically, the Complaint “merely states a cause of action for
enforcement of a promissory note and foreclosure of the associated security interest in real
property.” (ECF No. 8 at 3 (quoting Burbage v. Richburg, 417 F. Supp. 2d 746, 749 (D.S.C.
“To the extent Pinnex seeks to remove this civil action based on diversity of citizenship
pursuant to 28 U.S.C. § 1332, a case may not be removed to federal court where the defendant is
a citizen of the forum state.” (ECF No. 8 at 3 (citing 28 U.S.C. § 1441(b)(2); Lincoln Property
Co. v. Roche, 546 U.S. 81, 90 (2005)).) An individual’s citizenship for the purposes of diversity
jurisdiction merely means the geographical state in which one intends to remain, and applies
equally to foreign residents as it does to those claiming actual citizenship of the state in which
they reside. Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974). Here, Pinnex clearly admits to
continue residency in said state for the purposes of diversity jurisdiction and the forumdefendant exception in § 1441(b)(2) despite written protestations. (ECF No. 1.)
As a result of the foregoing, the court concludes that neither Pinnex’s objections (ECF
No. 11) nor her Amended Notice of Removal (ECF No. 12) specifically answer the defects noted
by the Magistrate Judge. (ECF No. 8.)
For the above reasons, the court ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 8) and REMANDS the case to the Court of Common Pleas for
Calhoun County for lack of subject matter jurisdiction.
IT IS SO ORDERED.
United States District Judge
July 6, 2017
Columbia, South Carolina
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