Opinion
C. A. 4:24-3208-MGL-KDW
06-04-2024
S.C. Forestry Commission, Plaintiff, v. Linda B. Nichols, a/k/a Linda Bellamy Nichols, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Linda B. Nichols (“Defendant”) proceeding pro se, filed a Notice of Removal that purports to remove all claims and causes of action associated with the following South Carolina Forestry Commission arrest warrants: 2024A2611000006, 2024A2611000007, 2024A2611000008, 2024A2611000009 from the Horry County Court to this court. ECF No. 1. Defendant seeks to remove these actions pursuant to 28 U.S.C. § 1442(a)(1) stating this statute “permits removal to a federal court of a criminal prosecution (or civil action) against defendants ‘for or relating to any act under color of law of such office.'” ECF No. 1 at 1.
I. Discussion
The removal statute, 28 U.S.C. § 1441, allows a state court defendant to remove a case to a federal district court if the state court action could have been originally filed there. See Darcangelo v. Verizon Commc'ns, Inc., 292 F.3d 181, 186 (4th Cir. 2002). Generally, a case can be originally filed in a federal district court if there is diversity of citizenship under 28 U.S.C. § 1332 or there is federal question jurisdiction under 28 U.S.C. § 1331. Federal courts have held that removal statutes are to be construed against removal jurisdiction and in favor of remand. See, e.g., Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 (D.S.C. 1990); Bellone v. Roxbury Homes, Inc., 748 F.Supp. 434, 436 (W.D. Va. 1990). A federal court should remand the case to state court if there is no federal subject matter jurisdiction evident from the face of the notice of removal and any state court pleadings provided. Ellenburg v. Spartan Motor Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). Thus, sua sponte remand is available under appropriate circumstances.
Defendant seeks to remove her pending South Carolina Forestry Commission arrest warrants to this court pursuant to 28 USC 1442(a). Removal under § 1442(a), however, requires a removing party to show, among other things, that he or she is a member of the armed forces of the United States, and Defendant's Complaint does not include any factual allegations showing she is a member of any branch of the United States Armed Forces. Because Defendant fails to establish this court's subject matter jurisdiction over the South Carolina Forestry Commission prosecution and arrest warrants she seeks to remove, the undersigned recommends this matter be remanded.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge remand this matter to the Horry County Court for lack of subject matter jurisdiction. Because this is only a recommendation, the Clerk of Court shall not immediately certify this matter to the Horry County Court but shall forward the case file and any objections to the United States District Judge for a final disposition.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).