No. 3:17-1762-JFA-SVH.

Stephens Remodeling, LLC, Plaintiff, v. All Occupants, Defendants.

United States District Court, D. South Carolina.

Editors Note
Applicable Law: 12 U.S.C. § 191
Cause: 12 U.S.C. § 191 Bank Foreclosure
Nature of Suit: 220 Real Property: Foreclosure
Source: PACER

Attorney(s) appearing for the Case

Stephens Remodeling LLC, Plaintiff, Pro Se.

All Occupants, Defendant, Pro Se.


SHIVA V. HODGES, Magistrate Judge.

Defendants (identified in the state court action as "All Occupants"), proceeding pro se, filed a notice of removal that purports to remove a Notice to Quit Premises ("Eviction") filed by Stephens Remodeling, LLC ("Plaintiff") in the Lexington County Magistrate Court, Case No. 2017-CV-32-1101122. [ECF No. 1]. All pretrial proceedings in this matter were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). For the reasons that follow, the undersigned recommends this matter be remanded for lack of subject matter jurisdiction.

I. Factual and Procedural Background

Defendants seek to remove an Eviction action associated with property located at 232 Edinfield Court, Gaston, South Carolina 29053.1 [ECF No. 1-4]. Defendants allege they are removing the action "for a Right to Review pursuant to Title 5 USC subsection 702." [ECF No. 1 at 1]. Defendants state:

The Lexington Magistrate Court is an administrative court that has injured and or in the process of injuring us. It has already been adjudicated that the courts are operating under administrative law, which is illegal and unlawful because it denies the due process of law under the United States Constitution (see Hill v. SEC, 114 F.Supp.3d 1297 (N.D. Ga. 2015).

Id. Defendants argue South Carolina's statutes, codes, and procedures do not comply with the United States Constitution, and, therefore, claims "the Lexington County Magistrate Court is unable to establish subject matter jurisdiction including but not limited to personal jurisdiction." Id.

II. Discussion

The removal statute, 28 U.S.C. § 1441, allows a state court defendant to remove a case to a federal district court if the state court action could have been originally filed there. See Darcangelo v. Verizon Commc'ns, Inc., 292 F.3d 181, 186 (4th Cir. 2002). Generally, a case can be originally filed in a federal district court if there is diversity of citizenship under 28 U.S.C. § 1332 or there is federal question jurisdiction under 28 U.S.C. § 1331. Federal courts have held that removal statutes are to be construed against removal jurisdiction and in favor of remand. 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). A federal court should remand the case to state court if there is no federal subject matter jurisdiction 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). Thus, sua sponte remand is available under appropriate circumstances.

Defendants fail to identify a viable jurisdictional basis for the removal of this Eviction action under 28 U.S.C. § 1331. The essential allegations of the complaint do not allege that the case is one "arising under the Constitution, laws, or treaties of the United States." See [ECF No. 1-4]. To the extent Defendants attempt to raise a defense to the Eviction by challenging the subject matter and personal jurisdiction of the Lexington County Magistrate Court, such defenses do not establish removal jurisdiction. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808 (1986); Cook v. Georgetown Steel Corp., 770 F.2d 1272, 1275 (4th Cir. 1985) ("A federal defense to a state cause of action is not sufficient to invoke federal jurisdiction."). Because removal of this case under federal question jurisdiction is improper, the case should be remanded to state court.

III. Conclusion and Recommendation

For the foregoing reasons, the undersigned recommends the district judge remand this matter to the Lexington County Magistrate Court, for lack of subject matter jurisdiction. Because this is only a recommendation, the Clerk of Court shall not immediately certify this matter to the Lexington County Magistrate Court, but shall forward the case file and any objections to the United States District Judge for a final disposition.



1. This property is the same property involved in J.P. Morgan Chase v. Hayes, C/A No. 3:17-1568, in which a report and recommendation is pending before the Honorable Joseph F. Anderson, Jr. The Clerk is instructed to send a copy of this R&R to counsel in that case, as well as Plaintiff.


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