Opinion
C/A No. 6:19-2608-TMC-KFM
09-17-2019
Reserve at Cavalier Plaintiff, v. Terico Harvey and All Others, Defendants.
REPORT OF MAGISTRATE JUDGE
Terico Harvey, proceeding pro se and in forma pauperis, removed the present action from the Greenville County Magistrate's Court (doc. 1), alleging a federal question arises from an eviction action against him for non-payment of rent. The docket number for the state court action was Case No. 2019cv2310202268 (id.). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
BACKGROUND
This case arises from a state eviction action (2019cv2310202268) filed against Mr. Harvey by Reserve at Cavalier ("landlord"). A Rule to Vacate or Show Cause for nonpayment of rent was issued against Mr. Harvey by the state magistrate on August 19, 2019 (doc. 1-1). On September 16, 2019, Mr. Harvey filed his notice of removal of the action from the state court, alleging the eviction proceedings occurred "in violation of the Uniform Commercial Code" ("UCC") (doc. 1). Mr. Harvey maintains that these alleged violations give rise to federal jurisdiction, thus, making this action removable. The undersigned disagrees.
The filings in the underlying case indicate as defendants "Terico Harvey And All Others"; however, only Mr. Harvey has filed a notice of removal herein (see doc. 1-1).
STANDARD OF REVIEW
Mr. Harvey removed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted," is "frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, Mr. Harvey's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction, however, does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
Subject Matter Jurisdiction
Mr. Harvey removed the present action to this court based upon federal question jurisdiction (doc. 1). "The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R. Civ. P. 41(b)). Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, "and to dismiss the action if no such ground appears." Bulldog Trucking, 147 F.3d at 352; see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). Federal question jurisdiction, as alleged herein, arises when the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. In his notice of removal, Mr. Harvey alleges that federal question jurisdiction exists over this eviction action because this case involves violations of the UCC. However, the Rule to Vacate or Show Cause Order by the state magistrate, provided by Mr. Harvey, contains nothing to suggest that the state proceedings arose out of the Constitution, laws, or treaties of the United States (see doc. 1-1). Further, Mr. Harvey cannot manufacture federal question jurisdiction in the present matter by referencing the UCC. See Gully v. First Nat'l Bank, 299 U.S. 109 (1936) (noting that "[t]he basis of federal question jurisdiction [ ] must appear upon the face of the state court complaint, and it cannot be supplied by reference to the answer or petition"); In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 585 (4th Cir. 2006) (noting that "actions in which [state court] defendants merely claim a substantive federal defense to a state law claim do not raise a federal question").
Moreover, this case may not be removed based on diversity of citizenship because Mr. Harvey fails to demonstrate the parties are diverse, or that the amount in controversy exceeds the jurisdictional amount. Federal court jurisdiction based on diversity of citizenship requires complete diversity of citizenship of the parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). 28 U.S.C. § 1332. Complete diversity of parties in a case means that no party on one side may be a citizen of the same state as any party on the other side. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 & nn.13-16 (1978). Here, Mr. Harvey indicates that he is a resident of South Carolina, and although he makes no allegations with respect to the landlord's citizenship, it appears that the landlord is also "domiciled" in South Carolina for jurisdiction purposes (docs. 1; 1-1). Moreover, Mr. Harvey has failed to provide any facts that would indicate the amount in controversy exceeds the jurisdictional amount. Therefore, to the extent Mr. Harvey seeks removal based on diversity of citizenship, removal is barred by § 1441(b)(2). Accordingly, this court lacks subject matter jurisdiction to accept removal from the state court to consider Mr. Harvey's UCC claim, and the case should be remanded.
RECOMMENDATION
Accordingly, it is recommended that the District Court sua sponte REMAND this case to the Greenville County Magistrate Court for lack of subject matter jurisdiction. Mr. Harvey's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge September 17, 2019
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).