Opinion
C. A. 3:22-3405-MGL-SVH
10-05-2022
Richland Central Traffic Court, Plaintiff, v. Jerome Garcia, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Jerome Garcia (“Defendant”), proceeding pro se, filed a notice of removal that purports to remove “Case No. 20192351031044, 45, 46 traffic tickets” from state court. [ECF No. 1]. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. After review of the pleadings, the undersigned finds this case should be remanded because the court lacks subject matter jurisdiction.
Defendant incorrectly captioned this case as if he is the plaintiff. A removal does not affect who is the defendant and a review of the state documents reveal that he is the defendant.
I. Factual Background
Defendant seeks to remove a state criminal case related to three traffic violations that allegedly occurred on June 26, 2019: (1) driving under a suspended license; (2) uninsured motor vehicle; and (3) operating or permitting operation which is not registered and licensed. [ECF No. 1-1].
II. Discussion
A. Magistrate Judge's Authority to Remand
This case has been referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Civil Rule 73.02(B)(2) (D.S.C.). There is a split of authority as to whether a magistrate judge has the authority to remand a matter to state court. However, at least one court in this district has addressed this issue in a published opinion and held that a magistrate judge did not have such authority. See Long v. Lockheed Missiles & Space Co., Inc., 783 F.Supp. 249, 250 (D.S.C. 1992). Many federal circuit courts addressing this matter in published opinions have reached a similar result, holding that an order to remand is dispositive. See Williams v. Beemiller, Inc., 527 F.3d 259, 264-66 (2d Cir. 2008); Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 514-17 (6th Cir. 2001); First Union Mortg. Corp. v. Smith, 229 F.3d 992, 994-97 (10th Cir. 2000); In re U.S. Healthcare, 159 F.3d 142, 145-46 (3d Cir. 1998). In light of the unsettled state of the law within this district as to whether remands are considered dispositive, a report and recommendation has been prepared in this case.
B. Analysis
Federal courts are courts of limited jurisdiction, and a district court must carefully guard to ensure that all cases before it are properly subject to its jurisdiction. A defendant in state court may remove that case to a federal district court if the state court action could have been originally filed in a federal district court. See 28 U.S.C. § 1441. The removing defendant, however, has the burden of establishing subject matter jurisdiction. Mulcahey v. Columbia Organic Chemicals. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Where no subject matter jurisdiction is present, a district court may sua sponte remand a case to state court. Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008).
Generally, a case may be filed in a federal district court 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. “If federal jurisdiction is doubtful, a remand is necessary.” Mulcahey, 29 F.3d at 151. Further, “[r]emoval statutes must be strictly construed against removal,” Scott v. Greiner, 858 F.Supp. 607, 610 (S.D. W.Va. 1994), and the 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). The Supreme Court has commanded that 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 citations omitted).
The case Defendant seeks to remove was initiated by traffic tickets issued in Richland County, South Carolina. [ECF No. 1]. Such an action fails to invoke this court's original jurisdiction as required by 28 U.S.C. § 1441. Further, in the context of criminal prosecutions, this court lacks subject matter jurisdiction, except in certain narrow circumstances permitted by 28 U.S.C. §§ 1442, 1442a, and 1443. South Carolina v. Guidetti, No. 6:11-3365-HMH-JDA, 2011 WL 6979991, at *2 (D.S.C. Dec. 20, 2011).
To qualify for removal pursuant to 28 U.S.C. § 1442, a defendant must establish several elements, including that he is an officer of the United States or a person acting under an officer of the United States. Bald Head Ass'n v. Curnin, No. 7:09-CV173-F, 2010 WL 1904268, at *3-5 (E.D. N.C. May 10, 2010), dismissed in part and aff'd in part, No. 10-1655, 2011 WL 1936083 (4th Cir. May 20, 2011). In the present action, Defendant does not allege that he meets the requirements of 28 U.S.C. § 1442. Defendant does not otherwise claim to be a current member of the armed forces of the United States. Because Defendant fails to establish this court's subject matter jurisdiction over the traffic court case he seeks to remove, this matter should be remanded to state court.
Finally, to the extent Defendant attempts to bring civil counterclaims for relief under 42 U.S.C. § 1983 or the Federal Tort Claims Act as part of his traffic court case, he cannot do so. See Guidetti, 2011 WL 6979991, at *2 (citing Connecticut v. Parks, No. 3:09-R-1(JCH), 2009 WL 3248654, at *2 (D. Conn. Oct. 5, 2009)) (finding plaintiff could not assert counterclaims under 42 U.S.C. § 1983 or any other statute as part of his traffic court case).
III. Conclusion
Accordingly, it is recommended the district judge remand this matter to state court.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 901 Richland Street Columbia, South Carolina 29201
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).