United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
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).
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).
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
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
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).
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.
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.
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).
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 ...