Opinion
No. 3:04-CV-1973-K.
October 29, 2004
REPORT AND RECOMMENDATION OF THE UNITED STATE MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference filed on September 20, 2004, came on to be considered Defendant Robert E. Spillman's motion for preliminary injunction filed on September 14, 2004. The findings, conclusions, and recommendations of the magistrate judge, as evidenced by his signature thereto, are as follows:
Findings and Conclusions
In filing his notice of removal, Defendant has failed to comply with the requirements of 28 U.S.C. § 1446(a) and Local Rule 81.1, insofar has he has not filed with this court an index of documents, a copy of the docket sheet in the state court action, and a copy of each document in the state court action.
In his notice of removal, Defendant asserts that he is a citizen of Texas. Therefore he may not remove this action based on diversity jurisdiction. 28 U.S.C. § 1441(b). He also attempts to invoke federal question jurisdiction. However, he fails to identify any federal statute on which he relies to establish jurisdiction. Further since he has failed to include copies of state court pleadings, supra, the court cannot independently consider this assertion.
A federal court should raise questions as to its subject matter jurisdiction sua sponte. See Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 915 (2004) citing Mansfield, C. L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511 (1884), see also 28 U.S.C. § 1446(c)(4). Plaintiff has, on the face of his notice of removal, failed to meet his burden to show that Federal jurisdiction exists and that removal is proper. See, e.g., Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Therefore, the District Court should summarily order that this case be remanded to the Justice Court of Dallas County, Precinct 1, Place 1.
Recommendation:
It is therefore recommended that this action be summarily returned to the state court in which it was originally filed.
In light of the recommendation, Defendant's motion for preliminary injunction, previously referred to the assigned, is moot.
A copy of this recommendation will be transmitted to counsel for Plaintiff and to Defendant.