United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
Jaiyanah Bey has filed a pro se notice of removal of a state
court civil action to the United States District Court. By
separate Order issued this date, Ms. Bey has been granted
leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. This matter is before the Court for a sua
sponte review of Ms. Bey's notice, which the Court
construes as a petition for removal of a state court action
to this federal court, to determine whether the Court has
jurisdiction over this matter. See 28 U.S.C. §
1915(e)(2)(B); Fed.R.Civ.P. 12(h)(3).
removal petition and attachments thereto allege that Ms. Bey
is a party-defendant to an action in the Hamilton County,
Ohio Court of Common Pleas, Juvenile Division, to terminate
her parental rights. It appears the state court case was filed
in 2016 and is set for a hearing on January 10, 2018.
is governed by 28 U.S.C. § 1441 which provides in
relevant part: "[A]ny civil action brought in a State
court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending." 28 U.S.C. § 1441(a). Thus,
"[o]nly state-court actions that originally could have
been filed in federal court may be removed to federal court
by the defendant." Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). The defendant
carries the burden of showing that removal is proper and that
the federal court has original jurisdiction to hear the case.
See Village of Oakwood v. State Bank and Trust Co.,
539 F.3d 373, 377 (6th Cir. 2008); Ahearn v. Charter
Township of Bloomfield, 100 F.3d 451, 453-54 (6th Cir.
1996). The removal statute is to be strictly construed and
where jurisdiction is in doubt, the matter should be remanded
to the state court. See Brierly v. Alusuisse Flexible
Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999).
extent Ms. Bey removes this matter on the basis of the
Court's diversity jurisdiction (Doc. 1 at PAGEID#: 5),
Ms. Bey is a resident of Ohio and may not remove the state
court action on this basis. Removal based on diversity of
citizenship is proper only where the defendant is not a
citizen of the forum state. The removal statute limits
removal of actions premised on diversity jurisdiction to
cases where "none of the parties in interest properly
joined and served as defendants is a citizen of the State in
which such action is brought." 28 U.S.C. § 1441(b).
Thus, even if there is complete diversity among the parties,
the presence of a properly joined and served resident
defendant bars removal. Chase Manhattan Mortgage Corp. v.
Smith, 507 F.3d 910, 914 (6th Cir. 2007); Federal
National Mortgage Association v. LeCrone, 868 F.2d 190,
194 (6th Cir. 1989). Because Ms. Bey is an Ohio citizen,
removal is barred under section 1441(b).
addition, the Court cannot discern a basis for original
federal question jurisdiction in this matter. District courts
have original federal question jurisdiction over cases
"arising under the Constitution, laws, or treaties of
the United States." 28 U.S.C. §1331. In determining
whether an action has been properly removed to federal court,
the Court must examine the face of the plaintiffs
well-pleaded complaint. Under the well-pleaded complaint
rule, district courts have federal question removal
jurisdiction over "only those cases in which a
well-pleaded complaint establishes either that federal law
creates the cause of action or that the plaintiffs right to
relief necessarily depends on resolution of a substantial
question of federal law." Franchise Tax Bd. v.
Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28
(1983). In other words, a case arises under federal law when
an issue of federal law appears on the face of the plaintiffs
well-pleaded complaint. Caterpillar, 482 U.S. at
392; Metropolitan Life Ins. Co. v. Taylor, 481 U.S.
58, 63 (1987). The plaintiff is the master of the claim and
may avoid federal jurisdiction by exclusive reliance on state
law. See Caterpillar, 482 U.S. at 392. In addition,
"it is now settled law that a case may not be
removed to federal court on the basis of a federal defense .
.. even if the defense is anticipated in the plaintiffs
complaint, and even if both parties concede that the federal
defense is the only question truly at issue."
Caterpillar, 482 U.S. at 393 (emphasis in the
original) (citing Franchise Tax Board, 463 U.S. at
12). See also Beneficial National Bank v. Anderson,
539 U.S. 1, 6 (2003); Metropolitan Life, 481 U.S. at
63; Chase Manhattan Mortgage Corp., 507 F.3d at 915.
has failed to establish this Court has original federal
question jurisdiction over this case. While Ms. Bey has not
attached the state court complaint to her notice of removal,
the other documents attached thereto indicate that the
Department of Jobs and Family Services filed a state court
action in the juvenile court and obtained temporary custody
over Ms. Bey's son. It appears that the Department is now
seeking permanent custody of the child through the juvenile
court action. There is nothing in the records to show this
case arises under the Constitution or laws of the United
States. Ms. Bey' notice of removal states:
This case also raises a federal question. Can a foreign
private corporation make claims of ownership, kidnap and hold
a flesh and blood being, baby, and have authority over a
flesh and blood Being Baby outside there (sic) corporate
policy and/or codes having ignored the provisions of due
process of law per the American Constitution 1791 5th Bill of
Rights secured for all people of a flesh and blood nature not
to be confused with any corporate and commercial activity.
The American Constitution also secures and guarantees relief
to flesh and blood being, people, whose liberties have been
violated through the secured provision of petitioning for a
grievance done to them.
Let the record show I was never in a lawfully sanction court
pursuant to the American Constitution as well as the Ohio
Constitution. The Hamilton county juvenile court is a
division of the Hamilton County Corporation and to be a
lawful court Hamilton County Corporation would have to sign
on to the provisions of the American Constitution 1791 else
they are practicing "English Law" on American soil.
If there is no documentation stating they have pledge their
allegiance to the American Constitution 1791, then they are
not a lawful court but simply a private corporation which is
not a substitute or replacement for judicial functions unless
one agree to allow them to mediate in which case I would have
to first agree to mediation. If it is alleged that they have
obtained a lawful "state" status enabling them to
operate as a lawful court, there is no provision for any
State/state to grant statehood, that is a function of
(Doc. 1 at PAGEID#: 5).
Court is unable to discern any federal cause of action
arising from Ms. Bey's allegations or the documents in
the state court proceeding. Ms. Bey's conclusory
allegations of "due process" and "American
Constitution" violations are insufficient to show
federal question jurisdiction in this matter.
the Court lacks subject matter jurisdiction over this case.
Ms. Bey's petition for removal should be denied, this
matter should be dismissed from the docket of the Court, and
the case should be remanded back to the state court.