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Cross County Development Co v. Griffin

United States District Court, S.D. Ohio, Western Division

July 1, 2019

CROSS COUNTY DEVELOPMENT CO., Plaintiff,
v.
MIKE GRIFFIN, et al., Defendants.

          Dlott, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.

         Defendant Mike Griffin filed a pro se notice of removal of a state court civil action to the United States District Court. (Doc. 1). Mr. Griffin alleges he removed his state court case to this federal court "to protect his 14th Amendment rights to property and to protect his due process rights for both him and his persons." (Id.). This matter is before the Court on Mr. Griffin's "affidavit in support of an emergency order to show cause for preliminary injunction and temporary restraining order," which seeks an order temporarily restraining and enjoining plaintiff from evicting or ejecting Mr. Griffin from the commercial property located at 7709-7711 Affinity Place, Cincinnati, Ohio and 7805 Affinity Place, Cincinnati, Ohio. (Doc. 12).

         Mr. Griffin is a party-defendant in a state court eviction action in the Hamilton County, Ohio Court of Common Pleas. Plaintiff Cross County Development Company ("Cross County") filed an amended complaint for eviction and money damages against Mr. Griffin and others on March 27, 2019. The state court granted Cross County's motion for summary judgment on all of its claims, including its forcible detainer (eviction) claims, and issued a writ of execution directing the Hamilton County Sheriffs Office to deliver possession of the real property to Cross County. (Doc. 10). Mr. Griffin's motion to stay the writ of execution was denied, and he subsequently filed a notice of appeal to the Ohio First District Court of Appeals on June 21, 2019. (Doc. 10). On June 24, 2019, Mr. Griffin filed his petition for removal in this federal court. (Doc. 1).

         Fed. R. Civ. P. 65 permits a party to a lawsuit to seek injunctive relief if he believes that he will suffer irreparable harm or injury while the suit is pending. In determining whether to issue a preliminary injunction, this Court must balance the following factors:

1. Whether the party seeking the injunction has shown a "strong" likelihood of success on the merits;
2. Whether the party seeking the injunction will suffer irreparable harm absent the injunction;
3. Whether an injunction will cause others to suffer substantial harm; and
4. Whether the public interest would be served by a preliminary injunction.

Leary v, Daeschner, 228 F.3d 729, 736 (6th Cir. 2000); Overstreetv. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 573 (6th Cir. 2002). The same four-factor analysis applies to a motion for temporary restraining order. See Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004).

         The four factors are not prerequisites, but must be balanced as part of a decision to grant or deny injunctive relief. Leary, 228 F.3d at 736. "Moreover, a district court is not required to make specific findings concerning each of the four factors used in determining a motion for preliminary injunction if fewer factors are dispositive of the issue." Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003). A preliminary injunction is an extraordinary remedy that should only be granted if the movant carries his burden of proving that the circumstances clearly demand it. Overstreet, 305 F.3d at 573.

         Mr. Griffin has not alleged facts sufficient to warrant a TRO/preliminary injunction. Mr. Griffin has made no attempt to apply the above factors that must be weighed to his situation. He has not presented any evidence either showing a substantial likelihood of success on the merits of his constitutional claims or demonstrating that he will suffer irreparable harm absent a TRO/preliminary injunction.

         More importantly, this Court lacks subject matter jurisdiction over this removal action. Removal 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).

         The Court cannot discern a basis for 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 state court 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 ...


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