Opinion
Case No. 1:02-CV-59.
March 13, 2002
ORDER
Currently before the Court is a "Notice of Removal/Injunction" filed by the pro se defendant in this case, Timothy Gene Wagner ("Wagner"). Plaintiff in this case, Larry Martz ("Martz") originally filed a petition pro se in the Whitley Superior Court on February 15, 2002, seeking a possessory order or replevin. On March 11, 2002, Wagner removed the case to this Court.
28 U.S.C. § 1441 governs removal of cases to federal court from state court. It reads: "[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 . . . to the district court of the United States for the district and division embracing the place where such action is pending." (Emphasis added.) Thus, in order for removal to be proper, the matter must be one over which this Court has original jurisdiction. Moreover, the Court has a duty to examine subject matter jurisdiction on its own motion. See Rice v. Rice Foundation, 610 F.2d 471, 474 (7th Cir. 1979) ("Because subject matter jurisdiction determines whether a court has power to act in a given case, a federal court . . . must raise the issue on its own motion.")
Here, the parties are both citizens of Indiana. Therefore, jurisdiction in this Court cannot be based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1). In addition, Martz's petition seeks only a possessory order or replevin pursuant to Indiana law. Accordingly, federal question jurisdiction is not present in this case either. See 28 U.S.C. § 1331. As a result, this Court does not have subject matter jurisdiction over this case.
Although Wagner's Notice of Removal is difficult to decipher, it appears that Wagner attempts to assert a defense that any replevin action or possessory order against him would violate his rights under the United States Constitution. However, the "well-pleaded complaint rule" clearly states that federal courts may look only to the well pleaded complaint and not to any possible or anticipated defenses, to determine if the case arises under federal law. See Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 402 (7th Cir. 2001). Therefore, in this case, the Court cannot consider Wagner's possible constitutional defense in the jurisdictional analysis. As a result, this Court does not have subject matter jurisdiction to hear this case. The cause will be remanded to the Whitley Superior Court.
CONCLUSION
Based upon the foregoing, this cause is hereby REMANDED to the Whitley Superior Court for further proceedings.
SO ORDERED.