United States District Court, M.D. North Carolina
ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
WEBSTER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court upon an application to proceed
in forma pauperis
(Docket Entry 1) by Defendant Wanda Boatwright, and under
frivolity review pursuant to 28 U.S.C. §1915(e)(2)(B).
After review of Defendant's IFP application, the Court
will grant Defendant's motion to proceed in forma
pauperis, but for reasons set forth below, this
Court recommends that this action be remanded to the state
19, 2019, Defendant filed an IFP application and notice of
removal seeking to remove a summary ejectment action brought
against Defendant in the Small Claims Court of Guilford
County, North Carolina. (Docket Entries 1-3.) Defendant seeks
removal based upon an alleged violation of the Civil Rights
Act of 1968. (See Docket Entry 2 at 2-3.)
STANDARD OF REVIEW
Court is required to dismiss frivolous or malicious claims,
and any complaint that fails to state a claim for upon which
relief can be granted. 28 U.S.C. § 1915(e)(2)(B);
Michau v.. Charleston County, S.C., 434
F.3d 725, 728 (4th Cir. 2006). “Dismissal of an action
. . . is appropriate when it lacks an arguable basis in law
or fact.” Jones v. Sternheimer, 387 Fed.Appx.
366, 368 (4th Cir. 2010). A frivolous complaint “lacks
an arguable basis in either law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). As a
part of its review, the Court may also consider the question
of subject matter jurisdiction. See Lovern v.
Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that
“[d]etermining the question of subject matter
jurisdiction at the outset of the litigation is often the
most efficient procedure”); Wright v. Huggins,
No. 5:09-CV-551-D, 2010 WL 2038806, at *2-3 (E.D. N.C. Mar.
11, 2010) (dismissing complaint on basis of lack of subject
matter jurisdiction as part of district court's frivolity
review under 28 U.S.C. § 1915) (citations omitted)).
defendant may remove a case from state court to federal court
in instances where the federal court is able to exercise
original jurisdiction over the matter. 28 U.S.C. §
1441(a). The removal statute provides in relevant part:
(a) [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). Federal courts have original jurisdiction
over primarily two types of cases: (1) those involving
federal questions and (2) those involving diversity of
citizenship. 28 U.S.C. §§ 1331 and 1332(a). Removal
jurisdiction is strictly construed against removal and in
favor of remand. Palisades Collections LLC v.
Shorts, 552 F.3d 327, 334 (4th Cir. 2008); see
also Cheshire v. Coca-Cola Bottling Affiliated,
Inc., 758 F.Supp. 1098, 1102 (D.S.C. 1990) (“If
federal jurisdiction is in doubt, such doubt must be resolved
in favor of state court jurisdiction and the case
assessing the propriety of removal, the rules for determining
whether a controversy “arises under” federal law,
thus creating federal question jurisdiction, are well
established. First, federal law must be an
“essential” element of the plaintiff's cause
of action. Gully v. First Nat'l Bank in
Meridian, 299 U.S. 109, 112 (1936). Next, the federal
question which is the predicate for removal must be
“presented on the face of the plaintiff's properly
pleaded complaint.” Rivet v. Regions Bank of
Louisiana, 522 U.S. 470, 475 (1998) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987)); see also Gully, 299 U.S. at 112-13
(“To bring a case within the [federal-question removal]
statute, a right or immunity created by the Constitution or
laws of the United States must be an element, and an
essential one, of the plaintiff's cause of action . . .
and the controversy must be disclosed upon the face of the
complaint, unaided by the answer or by the petition for
a general rule, absent diversity jurisdiction, a case will
not be removable if the complaint does not affirmatively
allege a federal claim.” Beneficial Nat'l Bank
v. Anderson, 539 U.S. 1, 6 (2003). Accordingly, the
federal claim that provides the predicate for removal cannot
originate in a defendant's answer by way of defense, nor
is it sufficient for the federal question to enter the case
as a counterclaim asserted by a defendant. See
Caterpillar Inc., 484 U.S. at 399 (“[A] defendant
cannot, merely by injecting a federal question into an action
that asserts what is plainly a state-law claim, transform the
action into one arising under federal law, thereby selecting
the forum in which the claim shall be litigated.”);
Gully, 299 U.S. at 113; see also Hunt v.
Lamb, 427 F.3d 725 (10th Cir. 2005) (vacating dismissal
and ordering remand to state court, holding that court lacked
jurisdiction over custody dispute, even if defendant sought
to vindicate federal civil and constitutional rights by way
of defense or counterclaim). Third, the federal question
raised must be a substantial one. Hagans v. Levine,
415 U.S. 528, 536 (1974). Finally, the party seeking removal
bears the burden of establishing federal jurisdiction.
Phillips Petroleum Co. v. Texaco, Inc., 415 U.S.
125, 127-28 (1974); Mulcahey v. Columbia Organic Chems.
Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Where a
court lacks subject matter jurisdiction, “the court may
enter a remand order sua sponte.”
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 196 (4th Cir. 2008) (emphasis in original).
present case, Defendant has removed this case from state
court in Guilford County, where Plaintiff filed a summary
ejectment action against Defendant. (See Complaint,
Docket Entry 3.) The Complaint indicates that Defendant
defaulted on a lease agreement by failing to pay rent due for
the months of June and July of 2019. Id. Plaintiff
thereafter sought court intervention to be put back in
possession of the leased premises and to retrieve payment.
Id. In her notice of removal, Defendant states that
Plaintiff has violated the Civil Rights Act of 1968 and that
this “Federal Cause of Action in ejectment/eviction the
basis for this ...