Opinion
C/A 4:23-2371-SAL-TER
06-06-2023
Lakeview Loan Servicing, LLC, Plaintiff, v. Charles Ray Thomas, II a/k/a Charles Ray Thomas, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Defendant, proceeding pro se, has filed documents in an attempt to remove a 2021 case from state court to this federal district court for a second time. The statute governing the procedure for removal of civil actions, 28 U.S.C. § 1446, requires Defendant to file a notice of removal containing a short and plain statement of the grounds for removal. 28 U.S.C. § 1446. Defendant is attempting to remove an action for foreclosure of a mortgage.
As a matter of expediency, Plaintiff's motion for in forma pauperis status is rendered moot; however, as also noted in No. 4:22-cv-2208-SAL, the answers on the form are woefully lacking. (ECF No. 3). In another of Plaintiff's actions, there is pending a recommendation of denial of a motion to proceed in forma pauperis. No. 4:23-cv-1711-SAL-TER.
State court records for cause no. 2021-cp-21-02234 contained on the public index also indicate the proceeding was for foreclosure, the judgment was in May 2022, Defendant Thomas' property was sold on April 4, 2023 at 11:00AM, and there was an order for disbursement of funds on May 31, 2023. See generally, https://publicindex.sccourts.org/Florence/PublicIndex/ PISearch.aspx(with search parameters limited by Defendant's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
A district court may sua sponte remand a case to state court based on lack of subject matter jurisdiction. Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). The presence or absence of federal question jurisdiction is governed by the “well pleaded complaint” rule. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) and Holmes Group, Inc. v. Vornado Air Circulation Sys, Inc., 535 U.S. 826, 831 (2002). Federal question jurisdiction exists only when a federal question is present on the face of a properly pleaded complaint. The removing defendant has the burden of establishing subject matter jurisdiction. Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). In the Notice of Removal, Defendant generally states jurisdiction is pursuant to § 1331 and there are rights secured by the Constitution and Congress. (ECF No. 1 at 1). This is the extent of Defendant's allegations as to subject matter jurisdiction. Upon the record before the court, there is no federal question jurisdiction arising from the allegations by the Plaintiff in the state court action.
To the extent Defendant seeks federal question jurisdiction by way of defenses or counterclaims asserting federal law, such counterclaims do not allow removal of the action. See Caterpillar, 482 U.S. at 392 and Holmes, 535 U.S. at 831. A plaintiff is master of his complaint and may avoid federal jurisdiction by relying exclusively on state law. Id. Counterclaims cannot serve as a basis for federal question jurisdiction on removal. See id.
Removal to this court in the instant action is not authorized by 28 U.S.C. § 1441. Therefore, the Court lacks jurisdiction to retain this action. Based on the foregoing, it is recommended that this case is remanded to state court for disposition.
Additionally, beyond this jurisdictional defect discussed, the case has essentially ended and the notice of removal is procedurally untimely. Defendant's counterclaims were dismissed in February 2022 and the foreclosure order against Defendant was issued in May 2022 by the state court.
Defendant's attention is directed to the important notice on the next page.
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 2317
Florence, South Carolina 29503
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)