Eiler v. Avera McKennan Hospital et al

Filing 5

MEMORANDUM OPINION AND ORDER OF DISMISSAL. Signed by U.S. District Judge Lawrence L. Piersol on 12/12/14. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FILED
DEC 12 2014

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ERIN EILER,
Plaintiff,
vs.
AVERA MCKENNAN HOSPITAL and
TREATING MEDICAL PERSONNEL,
Defendants.

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CIV 14-4172

MEMORANDUM OPINION
AND ORDER OF DISMISSAL

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On November 19, 2014, Plaintifffiled a pleading entitled "Notice o fRemo val. " The caption
and heading ofthe pleading are from a case appealed from South Dakota Circuit Court to the South
Dakota Supreme Court. It appears from the Notice ofRemoval and the accompanying Memorandum
that Plaintiff is attempting to remove a state court case she filed against Defendants for an alleged
falsity or error in her medical records at Avera McKennan hospital. No forms ofprocess, pleadings,
and orders for this case are attached as required by 28 U.S.C. § 1446(a).

This Court must review all removed actions to confirm that federal jurisdiction is proper. The
party seeking removal has the burden of establishing federal subject matter jurisdiction. In re

Business Men's Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993). Removal jurisdiction is
statutory and strictly construed. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941).

Plaintiff s Notice ofRemoval suffers from numerous procedural and substantive deficiencies
and fails to state a cognizable claim for relief under federal court jurisdiction. First, removal is
available only to a defendant. 28 U.S.C. 1441(a) ("Except as otherwise expressly provided by Act
ofCongress, any civil action brought in a State court ofwhich the district courts ofthe United States

have original jurisdiction, may be removed by the defendant or the defendants, to the district court
ofthe United States for the district and division embracing the place where such action is pending.").
Further, whether or not a federal court has removal jurisdiction over a matter originally filed in state
court must be determined from the face ofthe plaintiffs well-pleaded complaint as it existed at the
time ofremoval. Gaming Corp. OfAmerica v. Dorsey & Whitney, 88 F.3d 536,542 (8th Cir. 1996)
("The 'well-pleaded complaint rule' requires that a federal cause ofaction must be stated on the face
ofthe complaint before the defendant may remove the action based on federal questionjurisdiction.").
Here, Plaintiffhas not provided the Court with a copy of her Complaint. The Court is thus unable
to find the subject matter jurisdiction exists in this case. Accordingly,

IT IS ORDERED that this matter is dismissed for lack ofjurisdiction.
Dated this 12th day of December, 2014.
BY THE COURT:

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wrence L. Pierso I
United States District Judge
ATTEST:
JOSEPH HAAS, CLERK

BY:--vCM~PJaJ-==DEPUTY

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