Dasilva v. Clay, C/A No. 9:18-cv-2878-MBS-BM

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtBristow Marchant United States Magistrate Judge
PartiesMaria Patricia Dasilva, Plaintiff, v. Albert Clay, Defendant.
Docket NumberC/A No. 9:18-cv-2878-MBS-BM
Decision Date18 January 2019

Maria Patricia Dasilva, Plaintiff,
Albert Clay, Defendant.

C/A No. 9:18-cv-2878-MBS-BM


January 18, 2019


The pro se Defendant, Albert R. Clay (Clay), filed a notice of removal on October 24, 2018, which purports to remove Case Number 2016-DR-07-1456 from the Family Court for Beaufort County, South Carolina. Clay appears to have removed the case pursuant to 28 U.S.C. §§ 1441 and 1443(1). See Notice of Removal, ECF No. 1.

The complaint in the removed family court case (case number 2016-DR-07-1456), titled "Complaint for Modification Visitation", concerns a visitation/custody dispute (as to a minor child) between Clay (the father of the child) and the child's mother. See ECF No. 1-1, at 4-10. Clay asserts that he has been subjected to a "third and identical action for the exact subject matter, same parties that ended in a final order; and the state lacks subject matter jurisdiction...and lacks personal jurisdiction[.]" ECF No. 1 at 1-2. He argues that a "final order" was issued in Beaufort County family court case number 2013-DR-07-2013 in April 2014, and that a "final order" was also issued in Beaufort County family court case number 2015-DR-07-0409 in November 2016, such that the family court may not revisit the issue of visitation/custody in the removed case.

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Additionally, Clay asserts that, in case number 2015-DR-07-0409, an addendum was removed "from the final order and supplanted a global consent order...that was not part of the final record...." ECF No. 1 at 2. He claims that "[t]he state court clerk has tampered with documents and/or more likely allowed others to do so[.]" Id. Clay further alleges that the family court failed to complete his case within 365 days in violation of a state administrative order, failed to docket some of his motions, improperly denied some of his motions, and failed to hold scheduled hearings. He asserts that he has been

(1) denied by the state due process of law, where the state purposely continuing litigation well beyond the mandatory 365 days and, to do so, (2) in clear violation of the preclusion clause, Article IV section 1 and the above named Federal statute, applicable to states through the Fourteenth Amendment to the Constitution; and (3) refusal to docket and hear motions for years.

Id. at 5 (errors in original).

After careful review of the filings and notice of removal, the undersigned finds that this action should be remanded back to the state court, sua sponte, because this Court lacks subject matter jurisdiction (as discussed below).1

Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). When considering removal jurisdiction, federal courts must "scrupulously confine their own jurisdiction to the precise limits which the statute has defined"; Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)(internal quotation marks and citation omitted); and the burden

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is on the removing defendant to establish subject matter jurisdiction. Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). In addition, "[r]emoval statues must be strictly construed against removal." Scott v. Greiner, 858 F.Supp. 607, 610 (S.D.W.Va. 1994), and a federal court must "resolve all doubts about the propriety of removal in favor of retained state court jurisdiction." Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993); see also Palisades Collections LLC v. Shorts, 552 F.3d 327, 333-34 (4th Cir. 2008); Mulcahey, 29 F.3d at 151 ["If federal jurisdiction is doubtful, a remand is necessary."].

Generally a case can be filed in a federal district court only if there is diversity of citizenship under 28 U.S.C. § 1332,2 or if there is federal question jurisdiction under 28 U.S.C. § 1331. Here, Clay has removed his case pursuant to 28 U.S.C. § 1441, asserting federal jurisdiction pursuant to 28 U.S.C. § 1331. See ECF No. 1 at 1.3 Removal pursuant to § 1441 allows a state court defendant to remove a case to a federal district court if the state court action could have originally been filed there. See Darcangelo v. Verizon Commc'ns, Inc., 292 F.3d 181, 186 (4th Cir. 2002). However, "[t]he presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (internal citation omitted); see Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir. 2004)[discussing the well-pleaded

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complaint rule]. Moreover, potential defenses and counterclaims involving the Constitution or laws of the United States are ignored in determining whether federal question jurisdiction exists. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009).

A careful review of the pleading filed in the family court fails to reveal any basis for federal question jurisdiction. As noted above, the family court case is titled "Complaint for Modification Visitation", and the first listed cause of action is "Custody and Visitation". Additional assertions concern the possible appointment of a Guardian ad Litem (and payment of costs associated with such), a restraining order to prevent discussion of the pending litigation with the minor child, discovery in the action, and payment of associated attorney's fees. ECF No. 1-1 at 4-10. Although Clay asserts that there is federal jurisdiction based on a First Amendment (access to the courts) and Fourteenth Amendment claim, or the full faith and credit act, such claims are not presented on the face of the family court complaint, and federal courts generally abstain from hearing child support matters. See Cantor v. Cohen, 442 F.3d 196, 202 (4th Cir. 2006) ["We find additional support for our decision in this case in the long established precedent that federal courts are courts of limited jurisdiction and generally abstain from hearing child custody matters."](citing Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980)); Capel v. Va. Dep't of Soc. Servs. Div. of Child Support Enf't, 640 F. App'x 257 (4th Cir. 2016) [holding that a federal district court lacked subject-matter jurisdiction to hear a civil complaint challenging the calculation of child support payments].

In Ankenbrandt v. Richards, 504 U.S. 689 (1992), the Supreme Court clarified that the principle of the domestic relations exception first enunciated in Barber v. Barber, 62 U.S. 582 (1858),4 does not rely on an absence of jurisdiction over such matters in Article III of the

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Constitution. Instead, the court held, inferior federal courts lack jurisdiction to entertain such actions because Congress did not grant them such authority in the Judiciary Act of 1789 or subsequent statutes. Ankenbrandt v. Richards, 504 U.S. at 698. Congressional acquiescence to the exception, and principles of federalism, stare decisis, and concerns of judicial economy, persuaded the Supreme Court to preserve the domestic relations exception, but, importantly, only in "cases involving the issuance of a divorce, alimony, or child custody decree." Id. at 704. Clay alleges that removal is proper under the "full faith and credit" clause of Article IV, Section 1 of the United States Constitution. However, "[t]he full faith and credit clause does not provide an independent basis of jurisdiction." Luterman v. Levin, 318 F. Supp. 11, 13 (D. Md. 1970)(citing Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291-92 (1888)). Otherwise, "any attempt, at any time or place, by any person, to enforce the provisions of any state statute or judgment would be, without more, a subject of federal jurisdiction." People of State of Ca. v. Bruce, 129 F.2d 421, 424 (9th Cir. 1942). Therefore, invocation of the full faith and credit clause does not constitute a claim arising under the Constitution for purposes of 28 U.S.C. §§ 1331 or 1441. Luterman, 318 F. Supp. at 13. Rather,

[i]t only prescribes a rule by which courts. Federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a state other than that in which the court is sitting.... [T]o invoke the rule which it prescribes does not make a case arising under the Constitution or laws of the United States.

State of Minn. v. N. Sec. Co., 194 U.S. 48, 72 (1904).

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Clay also purports to remove this family court case pursuant to 28 U.S.C. § 1443(1). ECF No. 1 at 1. This statute authorizes the removal of civil actions filed in state court, even if the action would not otherwise be removable under the court's original jurisdiction:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of the citizens of the United States, or of all persons within the jurisdiction thereof[.]

28 U.S.C. § 1443(1). Under § 1443(1), a defendant must satisfy a two-pronged test to remove an action. Georgia v. Rachel, 384 U.S. 780 (1966). First, the party must prove the rights allegedly denied to him arise under a federal law "providing for specific civil rights stated in terms of racial equality." Id. at 792. Second, the party must prove he has been "denied or cannot enforce" the specific civil rights in state court. Id. at 794. Clay has not alleged a racial equality claim, and Section 1443 "le[aves] to the state court" the protection of a defendant's federal civil rights, "except in the...

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