Opinion
CIVIL 6:24-CV-00284-ADA-JCM
07-02-2024
KALLAN SALGANIK, et al, Plaintiffs, v. STATE OF TEXAS, et al, Defendants.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Kallan Salganik's Notice of Removal (ECF No. 1). For the following reasons, the Court RECOMMENDS that this matter be REMANDED sua sponte.
I. BACKGROUND
On May 23, 2024, Salganik filed a notice of removal of a state court action “based on a seizure of currency related to criminal activities.” Notice of Removal at 1. Salganik filed a counterclaim as the real party in interest of the currency to be seized. Notice of Removal, Ex. D (ECF No. 1-5) at 43. Salganik's counterclaims are brought under 42 U.S.C. § 1983. Id. at 52-58. Salganik cites 28 U.S.C. § 1441 for the basis of his removal. Notice of Removal at 2.
II. DISCUSSION
The existence of federal question jurisdiction is determined by applying the “well-pleaded” complaint rule. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 910, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Under the rule, the existence of jurisdiction is determined solely from what appears on the face of the plaintiff's complaint. Id. at 10. Further, Section 1441(a) “does not permit removal based on counterclaims at all.” Home Depot U.S.A., Inc. v. Jackson, 139 S.Ct. 1743, 1748 (2019). Nor may a case be removed to federal court on the basis of a federal defense. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987).
Nothing on the face of the plaintiff's complaint presents a federal question. Plaintiff brought this claim under the Texas Code of Criminal Procedure. Notice of Removal, Ex. D at 3. Rather, Plaintiff bases removal on either his counterclaim under federal law or his defense to seizure based on federal law. See Notice of Removal. Neither ground provides this Court with subject matter jurisdiction. Thus, removal was not proper and the present action should be remanded.
III. CONCLUSION
For the reasons discussed above, the undersigned RECOMMENDS this matter be REMANDED sua sponte to the court from which Salganik removed this case.
IV. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.