Opinion
C/A No. 9:18-cv-2878-MBS-BM
01-18-2019
Maria Patricia Dasilva, Plaintiff, v. Albert Clay, Defendant.
REPORT AND RECOMMENDATION
The pro se Defendant, Albert R. Clay (Clay), filed a notice of removal on October 24, 2018, which purports to remove Case Number 2016-DR-07-1456 from the Family Court for Beaufort County, South Carolina. Clay appears to have removed the case pursuant to 28 U.S.C. §§ 1441 and 1443(1). See Notice of Removal, ECF No. 1.
The complaint in the removed family court case (case number 2016-DR-07-1456), titled "Complaint for Modification Visitation", concerns a visitation/custody dispute (as to a minor child) between Clay (the father of the child) and the child's mother. See ECF No. 1-1, at 4-10. Clay asserts that he has been subjected to a "third and identical action for the exact subject matter, same parties that ended in a final order; and the state lacks subject matter jurisdiction...and lacks personal jurisdiction[.]" ECF No. 1 at 1-2. He argues that a "final order" was issued in Beaufort County family court case number 2013-DR-07-2013 in April 2014, and that a "final order" was also issued in Beaufort County family court case number 2015-DR-07-0409 in November 2016, such that the family court may not revisit the issue of visitation/custody in the removed case.
Additionally, Clay asserts that, in case number 2015-DR-07-0409, an addendum was removed "from the final order and supplanted a global consent order...that was not part of the final record...." ECF No. 1 at 2. He claims that "[t]he state court clerk has tampered with documents and/or more likely allowed others to do so[.]" Id. Clay further alleges that the family court failed to complete his case within 365 days in violation of a state administrative order, failed to docket some of his motions, improperly denied some of his motions, and failed to hold scheduled hearings. He asserts that he has been
(1) denied by the state due process of law, where the state purposely continuing litigation well beyond the mandatory 365 days and, to do so, (2) in clear violation of the preclusion clause, Article IV section 1 and the above named Federal statute, applicable to states through the Fourteenth Amendment to the Constitution; and (3) refusal to docket and hear motions for years.Id. at 5 (errors in original). After careful review of the filings and notice of removal, the undersigned finds that this action should be remanded back to the state court, sua sponte, because this Court lacks subject matter jurisdiction (as discussed below).
A district court is obligated to consider sua sponte whether jurisdiction is present and remand the case to state court if it determines that it lacks jurisdiction. See 28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008).
Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). When considering removal jurisdiction, federal courts must "scrupulously confine their own jurisdiction to the precise limits which the statute has defined"; Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)(internal quotation marks and citation omitted); and the burden is on the removing defendant to establish subject matter jurisdiction. Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). In addition, "[r]emoval statues must be strictly construed against removal." Scott v. Greiner, 858 F.Supp. 607, 610 (S.D.W.Va. 1994), and a federal court must "resolve all doubts about the propriety of removal in favor of retained state court jurisdiction." Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993); see also Palisades Collections LLC v. Shorts, 552 F.3d 327, 333-34 (4th Cir. 2008); Mulcahey, 29 F.3d at 151 ["If federal jurisdiction is doubtful, a remand is necessary."].
Generally a case can be filed in a federal district court only if there is diversity of citizenship under 28 U.S.C. § 1332, or if there is federal question jurisdiction under 28 U.S.C. § 1331. Here, Clay has removed his case pursuant to 28 U.S.C. § 1441, asserting federal jurisdiction pursuant to 28 U.S.C. § 1331. See ECF No. 1 at 1. Removal pursuant to § 1441 allows a state court defendant to remove a case to a federal district court if the state court action could have originally been filed there. See Darcangelo v. Verizon Commc'ns, Inc., 292 F.3d 181, 186 (4th Cir. 2002). However, "[t]he presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (internal citation omitted); see Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir. 2004)[discussing the well-pleaded complaint rule]. Moreover, potential defenses and counterclaims involving the Constitution or laws of the United States are ignored in determining whether federal question jurisdiction exists. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009).
Clay, a South Carolina citizen, has not alleged diversity of the parties (it appears that the plaintiff in the state court action is also a South Carolina citizen). See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) [Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side].
Clay refers to 28 U.S.C. § 1441 on page 4 of his notice of removal, but thereafter quotes language from 28 U.S.C. § 1443 (ECF No. 1 at 4), which is discussed further below.
A careful review of the pleading filed in the family court fails to reveal any basis for federal question jurisdiction. As noted above, the family court case is titled "Complaint for Modification Visitation", and the first listed cause of action is "Custody and Visitation". Additional assertions concern the possible appointment of a Guardian ad Litem (and payment of costs associated with such), a restraining order to prevent discussion of the pending litigation with the minor child, discovery in the action, and payment of associated attorney's fees. ECF No. 1-1 at 4-10. Although Clay asserts that there is federal jurisdiction based on a First Amendment (access to the courts) and Fourteenth Amendment claim, or the full faith and credit act, such claims are not presented on the face of the family court complaint, and federal courts generally abstain from hearing child support matters. See Cantor v. Cohen, 442 F.3d 196, 202 (4th Cir. 2006) ["We find additional support for our decision in this case in the long established precedent that federal courts are courts of limited jurisdiction and generally abstain from hearing child custody matters."](citing Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980)); Capel v. Va. Dep't of Soc. Servs. Div. of Child Support Enf't, 640 F. App'x 257 (4th Cir. 2016) [holding that a federal district court lacked subject-matter jurisdiction to hear a civil complaint challenging the calculation of child support payments].
In Ankenbrandt v. Richards, 504 U.S. 689 (1992), the Supreme Court clarified that the principle of the domestic relations exception first enunciated in Barber v. Barber, 62 U.S. 582 (1858), does not rely on an absence of jurisdiction over such matters in Article III of the Constitution. Instead, the court held, inferior federal courts lack jurisdiction to entertain such actions because Congress did not grant them such authority in the Judiciary Act of 1789 or subsequent statutes. Ankenbrandt v. Richards, 504 U.S. at 698. Congressional acquiescence to the exception, and principles of federalism, stare decisis, and concerns of judicial economy, persuaded the Supreme Court to preserve the domestic relations exception, but, importantly, only in "cases involving the issuance of a divorce, alimony, or child custody decree." Id. at 704. Clay alleges that removal is proper under the "full faith and credit" clause of Article IV, Section 1 of the United States Constitution. However, "[t]he full faith and credit clause does not provide an independent basis of jurisdiction." Luterman v. Levin, 318 F. Supp. 11, 13 (D. Md. 1970)(citing Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291-92 (1888)). Otherwise, "any attempt, at any time or place, by any person, to enforce the provisions of any state statute or judgment would be, without more, a subject of federal jurisdiction." People of State of Ca. v. Bruce, 129 F.2d 421, 424 (9th Cir. 1942). Therefore, invocation of the full faith and credit clause does not constitute a claim arising under the Constitution for purposes of 28 U.S.C. §§ 1331 or 1441. Luterman, 318 F. Supp. at 13. Rather,
The domestic relations exception applies to diversity cases, and as noted above, diversity jurisdiction is not present in this case. Moreover, the Supreme Court has held that even under the domestic relations exception, "'divorce, alimony, and child custody decrees' remain outside federal jurisdictional bounds[.]" Marshall v. Marshall, 547 U.S. 293, 308 (2006)(quoting Ankenbrandt v. Richards, 504 U.S. 689, 703-04 (1992)); see also Wasserman v. Wasserman, 671 F.2d 832, 834 (4th Cir. 1982)["diversity jurisdiction does riot include the power to grant divorces, determine alimony or support obligations, or decide child custody rights"]; Raftery v. Scott, 756 F.2d 335, 343 (4th Cir. 1985)[domestic relations exception to federal courts' jurisdiction based on idea that state courts have "a stronger and more direct interest in the domestic relations of its citizens than does the federal court."].
[i]t only prescribes a rule by which courts. Federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a state other than that in which the court is sitting.... [T]o invoke the rule which it prescribes does not make a case arising under the Constitution or laws of the United States.State of Minn. v. N. Sec. Co., 194 U.S. 48, 72 (1904).
Clay also purports to remove this family court case pursuant to 28 U.S.C. § 1443(1). ECF No. 1 at 1. This statute authorizes the removal of civil actions filed in state court, even if the action would not otherwise be removable under the court's original jurisdiction:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of the citizens of the United States, or of all persons within the jurisdiction thereof[.]28 U.S.C. § 1443(1). Under § 1443(1), a defendant must satisfy a two-pronged test to remove an action. Georgia v. Rachel, 384 U.S. 780 (1966). First, the party must prove the rights allegedly denied to him arise under a federal law "providing for specific civil rights stated in terms of racial equality." Id. at 792. Second, the party must prove he has been "denied or cannot enforce" the specific civil rights in state court. Id. at 794. Clay has not alleged a racial equality claim, and Section 1443 "le[aves] to the state court" the protection of a defendant's federal civil rights, "except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court." City of Greenwood v. Peacock, 384 U.S. 808, 828 (1966). The Supreme Court has "expressly held that those rights that inhere in every citizen by virtue of the Federal Constitution are not rights 'arising under a law providing for 'equal civil rights' within the meaning of 1443(1).'"] Shuttlesworth v. City of Birmingham, 399 F.2d 529, 532 (5th Cir.1968). Therefore, because the Supreme Court has construed the statutory phrase "'any law providing for the equal civil rights of citizens of the United States,' ... 'to mean any law providing for specific civil rights stated in terms of racial equality,'" State Farm Mut. Auto. Ins. Co. v. Baasch, 644 F.2d 94, 97 (2d Cir. 1981)(quoting Rachel, 384 U.S. at 791), § 1443 applies only in cases where a defendant seeks to remove a state cause of action based upon alleged racial discrimination, see Johnson v. Mississippi, 421 U.S. 213, 219 (1975). "[B]road contentions under the First Amendment and the Due Process Clause of the Fourteenth Amendment"—for example—"cannot support a valid claim for removal under § 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens[.]" Rachel, 384 U.S. at 792 (citing New York v. Galamison, 342 F.2d 255, 271 (2d Cir. 1965)).
Clay also asserts that he has been denied "equal protection." An equal protection claim arises when, without adequate justification, similarly-situated persons are treated differently by a governmental entity. U.S. Const. amend XIV. However, "to succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Morrison v. Garraghty, 239 F.3d 648, (4th Cir. 2001). When the distinction is based on a "suspect classification" or effects the denial of a fundamental right, the constitutional scrutiny sharpens in focus to determine whether the "classification has been precisely tailored to serve a compelling governmental interest." See Plyler v. Doe, 457 U.S. 202, 216-17 (1982). When a plaintiff is not a member of a suspect class, he must prove that the distinction between himself and other inmates was not reasonably related to some legitimate penological purpose. See Turner v. Safley, 482 U.S. 78, 89 (1987). Here, Clay has not asserted that he is a member of a protected class. Although he makes a general claim, Clay has not alleged any person to whom he is similarly situated that was treated differently from him. Further, allegations which merely indicate disparity of treatment or even arbitrary administration of state powers, rather than instances of purposeful or invidious discrimination, are insufficient to show discriminatory intent. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987).
Clay also cites to 42 U.S.C. § 1985(2), which provides:
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws[.]42 U.S.C. § 1985(2). The first clause of 42 U.S.C. § 1985(2) does not require that a conspiracy be motivated by a racial, or otherwise class-based, invidiously discriminatory animus. Kush v. Rutledge, 460 U.S. 719, 720 (1983). However, this clause does not apply to this family court action, as it does not involve a federal proceeding. See id. at 723-726. While the second part of § 1985(2) applies to state courts, id. at 725, it requires an allegation of class-based animus, Kimberlin v. Frey, No. GJH-13-3059, 2015 WL 1431571 (D.Md. Mar. 26, 2015)(quoting Chavis v. Clayton Cly. Sch. Dist., 300 F.3d 1288, 1292 (11th Cir. 2002)), which Clay has not alleged.
Additionally, although Clay denies that he is appealing the actions of the South Carolina family court, that is what he is effectively trying to do, and federal district courts do not hear "appeals" from state court actions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983)[a federal district court lacks authority to review final determinations of state or local courts because such review can only be conducted by the Supreme Court of the United States under 28 U.S.C. § 1257]; Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Thus, Clay may not use a civil rights action to challenge the determinations or rulings of state courts. See Anderson v. Colorado, 793 F.2d 262, 263 (10th Cir. 1986) ["[I]t is well settled that federal district courts are without authority to review state court judgments where the relief sought is in the nature of appellate review."].
Further, although Clay asserts federal constitutional issues, his assertions are intertwined with the family court action such that the Rooker-Feldman Doctrine applies to bar the exercise of federal jurisdiction. See, e.g., Ihenachor v. Maryland, No. RDB-17-3134, 2018 WL 1863678, at *2 (D. Md. April 18, 2018)[As the success of the plaintiff's claims necessarily depended upon a determination that the state court wrongly decided issues of physical custody, legal custody, and child support, the claims were inextricably intertwined with the state court decision and thus the court did not have subject matter jurisdiction pursuant to the Rooker-Feldman doctrine]; Richardson v. N.C. Dept. of Health & Human Servs., No. 5:12-CV-180-D, 2012 WL 4426303, at *1 (E.D.N.C. June 29, 2012) [holding that Rooker-Feldman applied to a claim challenging a child support order on the grounds of violation of due process], adopted, 2012 WL 4426059 (E.D.N.C. Sept. 24, 2012); Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986) ["Litigants may not obtain review of state court actions by filing complaints about those actions in lower federal courts cast in the form of civil rights suits."]; see also Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981); Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587-588 & nn. 2-4 (4th Cir. 1969) [holding that federal district courts and United States Courts of Appeals have no appellate or supervisory authority overstate courts]. Therefore, to the extent that Clay is requesting relief that would require this Court to overrule and reverse orders and rulings made in the state court, such a result is prohibited under the Rooker-Feldman doctrine. Davani v. Virginia Dep't. of Transp.,434 F.3d 712, 719-720 (4th Cir. 2006); see Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293-294 (2005); Jordahl v. Democratic Party of Va., 122 F.3d 192, 201 (4th Cir. 1997).
The Rooker-Feldman doctrine is jurisdictional, so it may be raised by the Court sua sponte. American Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003).
Further, although it does not appear that it is necessary to reach the issue of abstention, as this court lacks subject matter jurisdiction, even if this court has jurisdiction it should abstain from asserting jurisdiction over Clay's claims arising from alleged violations of his constitutional rights. In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a federal court should not equitably interfere with state judicial proceedings except in the most narrow and extraordinary of circumstances. From Younger and its progeny, the Fourth Circuit has culled the following test to determine when abstention is appropriate: "(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in the state proceedings." Martin Marietta Corp. v. Maryland Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Here, the claims in the family court action involve ongoing child custody/visitation matters in state court, which implicate important state interests, as recognized by the Supreme Court:
"[D]omestic relations" is "an area that has long been regarded as a virtually exclusive province of the States." Indeed, "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2565 (2013) (internal citations omitted). Moreover, Clay has an adequate state forum in which to pursue his federal constitutional claims.
Finally, to the extent Clay seeks to enjoin a pending state action, the Anti-Injunction Act precludes such. Section 2283 of Title 28 of the United States Code mandates that except in certain circumstances "[a] court of the United States may not grant an injunction to stay proceedings in a State court...." The Act constitutes "an absolute prohibition against any injunction of any state-court proceedings, unless the injunction falls within one of the three specifically defined exceptions Act." Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630 (1977) (plurality opinion). These three exceptions are injunctions: (1) expressly authorized by statute; (2) necessary to aid the court's jurisdiction; or (3) required to protect or effectuate the court's judgments. Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988); Atlantic Coast Line R.R. Co. v. Board of Locomotive Eng'rs, 398 U.S. 281, 287-88 (1970). None of these exceptions applies here.
Conclusion
Based on the foregoing, it is recommended that this case be remanded back to state court sua sponte based on a lack of subject matter jurisdiction in this Court.
While many Courts have held that an order of remand is non-dispositive and can be issued by a United States Magistrate Judge in a non-consent case, it is not firmly established whether the undersigned can issue an order of remand, or whether a Report and Recommendation is required. See Jonas v. Unison Ins. Co., No. 00-1217, 2000 WL 1350648, at * 1 (4th Cir. Sept. 20, 2000) [Noting that Fourth Circuit has not addressed question of whether Magistrate Judge may issue remand orders in non-consent cases]; cf. Williams v. Beemiller, Inc., 527 F.3d 259 (2d Cir. 2008)[Finding that remand orders are dispositive]; Vogel v. U.S. Office Products Co., 258 F.3d 509, 514-517 (6th Cir. 2001)[same]; First Union Mortgage Co. v. Smith, 229 F.3d 992, 996-997 (10th Cir. 2000)[same]; In re U.S. Healthcare, 159 F.3d 142, 145-146 (3d Cir. 1998)[same]; Vaquillas Ranch Co. v. Texaco Exploration & Production, Inc., 844 F. Supp. 1156, 1163 (S.D.Texas 1994); McDonough v. Blue Cross of Northeastern Pennsylvania, 131 F.R.D. 467 (W.D.Pa. 1990); City of Jackson v. Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 124 (S.D.Miss. 1993); Long v. Lockheed Missiles & Space Co., 783 F.Supp. 249 (D.S.C. 1992); Stanion v. Staley, No. 16-750, 2016 WL 3629087 at * 1, n. 1 (D.N.C. June 29, 2016); William E. Smith Trucking, Inc. v. Rush Trucking Centers of North Carolina, Inc., No. 11-887, 2012 WL 214155, at * 2-6 (M.D.N.C. Jan. 24, 2012) [Analyzing relevant statutes and caselaw and finding that remand order is nondispositive]; Pikkert v. Pastene, No. 03-1212, 2003 WL 21154296 (4th Cir. May 20, 2013). cert. denied, 541 U.S. 987 (2014) [unpublished, but finding that a magistrate judge's remand order is not reviewable by the appellate court]. While the undersigned has issued orders of remand in some circumstances in nonpro se cases, in light of Clay's pro se status, and out of an abundance of caution, this Report and Recommendation, instead of an Order, is being entered so that Clay can contest remand before the District Judge, if he so desires.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge January 18, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).