Opinion
Civil Action 3:23-CV-00487
03-23-2023
FARIDA B. RAHMAN, Plaintiff, v. RICHARD M. HUGHES, III, Defendant.
MARIANI, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
This matter comes before the court upon a notice of removal filed by the plaintiff, Farida B. Rahman, on March 21, 2023. (Doc. 1.) In her fee-paid pro se notice of removal, the plaintiff purports to remove to this federal district court a civil action she had previously commenced in the Court of Common Pleas of Luzerne County, Pennsylvania, by filing a fee-paid praecipe for a writ of summons. See Rahman v. Hughes, Civil Action 2023-01973 (Luzerne Cnty. (Pa.) C.C.P. filed Feb. 16, 2023).The plaintiff does not appear to have filed a complaint in the underlying state court action prior to removal.
A copy of the praecipe and several other documents filed by Rahman in the state court proceedings have been filed as attachments to the notice of removal. (See Doc. 1-1; Doc. 1-2; Doc. 1-3; Doc. 1-4; Doc. 1-5; Doc. 1-6; Doc. 1-7; Doc. 1-8; Doc. 1-9; Doc. 1-10; Doc. 1-11.)
This court lacks subject matter jurisdiction to consider this case. It is well established that federal removal statutes confine the right of removal from state court to a federal district court to a defendant; there is simply no statutory authorization for a plaintiff, the party who chose to initiate litigation in the state forum, to remove his or her own action to federal court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104-05 (1941); Conner v. Salzinger, 457 F.2d 1241, 1242-43 (3d Cir. 1972); Boldrini v. PEGA Real Estate Tr., No. 3:18-cv-00410, 2018 WL 1976474, at *1 (M.D. Pa. Feb. 22, 2018), report & recommendation adopted by 2018 WL 1963968 (M.D. Pa. Apr. 26, 2018), appeal dismissed, 2018 WL 6264374 (3d Cir. Oct. 1, 2018); Untrachtt v. Fikri, 454 F.Supp.2d 289, 328 (W.D. Pa. 2006). See generally 28 U.S.C. § 1441(a) (providing that certain state court civil actions “may be removed by the defendant or the defendants”); id. § 1443 (providing that certain state court civil actions or criminal prosecutions “may be removed by the defendant”); id. § 1446 (outlining procedure for removal of civil actions by the “defendant or defendants”); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168-69 (3d Cir. 1976) (“[I]t is federal policy to strictly construe removal statutes and to limit the removal jurisdiction of the federal courts. The cases are legion.”). This particular plaintiff has previously been instructed on this issue in another removal case involving the very same jurisdictional defect. See Rahman v. Gelb, Civil Action No. 3:22-CV-00890, 2022 WL 16942244, at *1 (M.D. Pa. Sept. 12, 2022), report & recommendation adopted by 2022 WL 16927793 (M.D. Pa. Nov. 14, 2022).
Moreover, as noted in that prior removal case as well, removal of a civil action commenced by writ of summons, where no complaint has yet been filed or served on the defendant, is premature, and this also implicates this court's subject matter jurisdiction. See Rahman, 2022 WL 16942244, at *2.
Having determined that this court lacks subject matter jurisdiction over this case, “the plain language of 28 U.S.C. § 1447(c) mandates that the matter be remanded to the state court from which it was removed.” Bromwell v. Mich. Mut. Ins. Co., 115 F.3d 208, 213 (3d Cir. 1997); see also 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.) (emphasis added). Despite the apparent futility of the plaintiff's claims,“when a federal court has no jurisdiction of a case removed from a state court, it must remand and not dismiss on the ground of futility....Whether the matter is justiciable under state law is a matter for the state court to decide.” Bromwell, 115 F.3d at 214.
We note that the defendant is a state court judge, and Rahman appears to be suing him based on his rulings in several other state court civil actions for which he was the presiding judge.
Accordingly, because this court lacks subject matter jurisdiction, it is recommended that this action be remanded to state court for further proceedings, and the clerk be directed to close this case. See 28 U.S.C. § 1447(c).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 23, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.