United States District Court, S.D. Ohio, Eastern Division
Michael H. Watson Judge.
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE
Sharon Bell, an Ohio resident who is proceeding without the
assistance of counsel, removed this eviction action
originally filed in Franklin County Municipal Court by
Plaintiff, Crosscreek, LLC. (ECF No. 1.) This matter is
before the Court for consideration of Defendant's Motion
for Leave to Proceed in forma pauperis (ECF No. 1)
and before the Court for an initial screen of the Complaint
as required by 28 U.S.C. § 1915(e)(2). Having reviewed
the Complaint, however, the Court concludes for the reasons
that follow that this matter was improperly removed and the
Court lacks subject matter jurisdiction over this matter.
U.S.C. § 1441 governs removal and provides in relevant
part as follows: “[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).
Accordingly, “[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). A federal court has limited subject matter
jurisdiction. “The basic statutory grants of federal
court subject-matter jurisdiction are contained in 28 U.S.C.
§ 1331, which provides for
‘[f]ederal-question' jurisdiction, and § 1332,
which provides for ‘[d]iversity of citizenship'
jurisdiction.” Arbaugh v. Y&H Corp., 546
U.S. 500, 501 (2006). Federal-question jurisdiction is
invoked when a plaintiff pleads a claim “arising
under” the federal laws, the Constitution, or treaties
of the United States. Id. (citation omitted). For a
federal court to have diversity jurisdiction pursuant to
Section 1332(a), there must be complete diversity, which
means that each plaintiff must be a citizen of a different
state than each defendant, and the amount in controversy must
exceed $75, 000. Caterpillar, Inc. v. Lewis, 519
U.S. 61, 68 (1996). As the party invoking federal
jurisdiction, Defendant bears the burden of proving
jurisdiction. Glob. Tech., Inc. v. Yubei (Xinxiang) Power
Steering Sys. Co., Ltd., 807 F.3d 806, 810 (6th Cir.
2015) (“As always, the party invoking federal
jurisdiction has the burden to prove that
jurisdiction.”); State Farm Mut. Auto. Ins. Co. v.
Elite Health Ctrs., Inc., No. 16-cv-12380, 2016 WL
4073561, at *3 (E.D. Mich. Aug. 1, 2016) (“The
citizenship of the parties is a jurisdictional fact in
diversity actions. The burden is on the plaintiff--the party
invoking federal jurisdiction-- to plead and prove such
facts.”). In addition, the removal statute is strictly
construed. Alexander v. Elec. Data Sys. Corp., 13
F.3d 940, 949 (6th Cir. 1994).
the Complaint does not contain “a short and plain
statement of the grounds for the court's jurisdiction[,
]” Fed.R.Civ.P. 8(a)(1), because Plaintiff has not
alleged a claim arising under federal law and it does not
appear that complete diversity exists. Plaintiff originally
filed this action in Franklin County Municipal Court,
alleging that Defendant violated the terms of her written
lease agreement with Plaintiff by failing to pay her rent.
(ECF No. 1-2 at PAGEID # 8 (seeking restitution of the
premises as well as monetary damages, including payments for
rent and utilities).) These state law claims do not state a
claim arising under federal law. Arbaugh, 546 U.S.
addition, construing pro se Defendant's
“Petition Notice of Removal of Action” liberally,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
Defendant appears to assert a defense under 15 U.S.C. §
1692. (ECF No. 1-1.) However, “federal jurisdiction
exists only when a federal question is presented on the face
of the plaintiff's properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. at 392.
“Potential defenses . . . do not provide a basis for
removal.” Medlen v. Estate of Meyers, 273
Fed.Appx. 464, 466 (6th Cir. 2008) (remanding action);
see also Caterpillar Inc., 482 U.S. at 392
(“[I]t 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 plaintiff's
complaint, and even if both parties concede that the federal
defense is the only question truly at issue.”);
Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910,
914-15 (6th Cir. 2007) (“[I]t is well settled that
federal counterclaims and defenses are ‘inadequate to
confer federal jurisdiction[.]'”) (citations
omitted). Accordingly, Defendant's apparent assertion of
a defense based on a federal statute is not sufficient to
establish federal question jurisdiction.
these state-law claims cannot invoke diversity jurisdiction
because there does not appear to be complete diversity of
citizenship. Here, Plaintiff and Defendant are both Ohio
residents. (ECF No. 1-1 at PAGEID # 6 (listing
Plaintiff's address in Columbus, Ohio, and identifying
Defendant's address in Westerville, Ohio).) Moreover,
Defendant's own filing reveals that she did not intend to
invoke the Court's diversity jurisdiction. (ECF No. 2 at
PAGEID # 11 (reflecting that she checked only “Federal
Question” box under the category “Basis of
Jurisdiction”).) Based on this record, Defendant has
not established that diversity of citizenship exists.
Caterpillar, Inc., 519 U.S. at 68. Accordingly, the
undersigned cannot discern a basis for federal jurisdiction.
reasons explained above, the Court lacks subject matter
jurisdiction over this action, which was improperly removed.
It is therefore RECOMMENDED that this
action, including Defendant's request for extraordinary
injunctive relief (ECF No. 1-1), be REMANDED
to Franklin County Municipal Court. In light of this
recommendation, it is FURTHER RECOMMENDED
that Defendant's Motion for Leave to Proceed in forma
pauperis (ECF No. 1) in this Court be
party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days,
file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and
Recommendation, and the part in question, as well as the
basis for objection. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). Response to objections must be filed within fourteen
(14) days after being served with a copy. Fed.R.Civ.P. 72(b).
parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of
the right to de novo review by the District Judge
and waiver of the right to appeal the judgment of the
District Court. See, e.g., Pfahler v. Nat'l
Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007)
(holding that “failure to object to the magistrate
judge's recommendations constituted a waiver of [the
defendant's] ability to appeal the district court's
ruling”); United States v. Sullivan, 431 F.3d
976, 984 (6th Cir. 2005) (holding that defendant waived
appeal of district court's denial of pretrial motion by
failing to timely object to magistrate judge's report and
recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is
waived. Robert v. Tesson, 507 F.3d 981, 994 (6th
Cir. 2007) (“[A] general objection to a magistrate
judge's report, which fails to specify the issues of
contention, does not suffice to preserve an issue for appeal
. . . .”) (citation omitted)).