Opinion
Case No. 3:17cv667-MCR-CJK
09-11-2017
THOMAS NORMAN OLSEN, Petitioner, v. TIMOTHY CHARLES HOLMSETH, Respondent.
REPORT AND RECOMMENDATION
This matter is before the court on Timothy Holmseth's "Notice of Removal of Action Under 28 U.S.C. 1441(b)." (Doc. 1). Holmseth claims a number of individuals—including Timothy Olsen—have conspired to violate his rights. Holmseth seeks to remove a case filed in Santa Rosa County, Florida, to this court. In the underlying state-court action, Olsen has petitioned for an injunction for protection against stalking from Holmseth.
Mr. Holmseth's notice of removal was not accompanied by the $400.00 filing fee or a motion to proceed in forma pauperis. --------
"To remove a case from a state court to a federal court, a defendant must file in the federal forum a notice of removal 'containing a short and plain statement of the grounds for removal.'" Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 551, 190 L. Ed. 2d 495 (2014) (quoting 28 U.S.C. § 1446(a)). Holmseth argues the case from Santa Rosa County is removable because Olsen requests that Holmseth "remove legally published content protected by the [First amendment] from [Holmseth's] online publication(s)[.]" Holmseth, however, has not established the state-court case presents a federal question. See Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002) ("A removing defendant bears the burden of proving proper federal jurisdiction.").
"A case . . . may be removed based on federal question jurisdiction 'only when the plaintiff's statement of his own cause of action shows that it is based' on federal law." Blab T.V. of Mobile, Inc. v. Comcast Cable Commc'ns, 182 F.3d 851, 854 (11th Cir. 1999) (quoting Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908)). A review of the petition for injunction filed by Olsen shows it does not implicate any federal law. (Doc. 1, p. 23-30). Although Holmseth asserts: (1) he should not be required to remove articles he published about Olsen because they are protected by the First Amendment; and (2) Olsen and other individuals have violated federal law, issues raised in response to the petition cannot serve as the basis for this court's jurisdiction. See Newton v. Capital Assur. Co., Inc., 245 F.3d 1306, 1309 (11th Cir. 2001) ("The federal cause of action or question of federal law must be apparent from the face of the well-pleaded complaint and not from a defense or anticipated defense."). Because Holmseth failed to establish this court has subject-matter jurisdiction over the removed case, remand is required.
Accordingly, it is respectfully RECOMMENDED:
1. That Santa Rosa County Circuit Court Case No. 17-1251-DR be REMANDED to the state court from which it was removed.
2. That the clerk be directed to close the file.
At Pensacola, Florida, this 11th day of September, 2017.
/s/ Charles J . Kahn, Jr.
CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations may be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon the Magistrate Judge and all other parties. A party failing to object to a Magistrate Judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See U.S. Ct. of App. 11th Cir. Rule 3-1; 28 U.S.C. § 636.