The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
WESAM MUHAREB, Case No. 1:22-cv-715
Plaintiff, Cole, J.
Litkovitz, M.J.
vs.
JOHN DOE, et al., REPORT AND
Defendants. RECOMMENDATION
Defendants Nikole Hatton and Cedric Michael Streeter filed a pro se notice of removal of
a state court civil action to the United States District Court. (Doc. 1). By separate Order, Ms.
Hatton and Mr. Streeter were granted leave to proceed in forma pauperis pursuant to 28 U.S.C. §
1915. This matter is before the Court for a sua sponte review of their notice of removal, which
the Court construes as a petition for removal of a state court action to this federal court, to
determine whether the Court has jurisdiction over this matter. See 28 U.S.C. § 1915(e)(2)(B);
Fed. R. Civ. P. 12(h)(3).
On October 4, 2022, Wesam Muhareb initiated a state court eviction action in the
Hamilton County, Ohio Court of Common Pleas against “John Doe and all other occupants” of
1063 Roxie Lane, Cincinnati, Ohio 45224. It appears that Ms. Hatton and Mr. Streeter are
party-defendants in the action, with both residing at the subject premises. (Doc. 1-4 at PAGEID
34). On December 5, 2022, Ms. Hatton and Mr. Streeter filed a removal petition in this federal
court. The removal petition states that Ms. Hatton and Mr. Streeter would like to remove a
“wrongful eviction” action from state court, but the petition itself does not specifically allege a
legal basis for removing the action. (Doc. 1-1 at PAGEID 7). In one of the state court
documents attached to the removal petition, Ms. Hatton and Mr. Streeter allege that the
“complainant is committing securities fraud by way of unlawful conversion of Counter-
Claimant’s Survivorship Deed”; the “complainant is without a security interest in our real
properly/homestead and has never acquired any such interest from us nor our predecessor”; and
the “complainant has violated their due process rights by failing “proper service of process
intentionally. . . .” (Id. at PAGEID 45).
This Court lacks subject matter jurisdiction over this removal action. Removal is
governed by 28 U.S.C. § 1441 which provides in relevant part: “[A]ny civil action brought in a
State court of which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States for the
district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a).
Thus, “[o]nly state-court actions that originally could have been filed in federal court may be
removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). The defendant carries the burden of showing that removal is proper and that the federal
court has original jurisdiction to hear the case. See Village of Oakwood v. State Bank and Trust
Co., 539 F.3d 373, 377 (6th Cir. 2008); Ahearn v. Charter Township of Bloomfield, 100 F.3d
451, 453-54 (6th Cir. 1996). The removal statute is to be strictly construed and where
jurisdiction is in doubt, the matter should be remanded to the state court. See Brierly v.
Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999).
The Court cannot discern a basis for federal question jurisdiction in this matter. District
courts have original federal question jurisdiction over cases “arising under the Constitution, laws,
or treaties of the United States.” 28 U.S.C. § 1331. In determining whether an action has been
properly removed to federal court, the Court must examine the face of the state court plaintiff’s
well-pleaded complaint. Under the well-pleaded complaint rule, district courts have federal
question removal jurisdiction over “only those cases in which a well-pleaded complaint
establishes either that federal law creates the cause of action or that the plaintiff’s right to relief
necessarily depends on resolution of a substantial question of federal law.” Franchise Tax Bd.
v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). In other words, a case arises
under federal law when an issue of federal law appears on the face of the plaintiff’s well-pleaded
complaint. Caterpillar, 482 U.S. at 392; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63
(1987). The plaintiff is the master of his complaint and may avoid federal jurisdiction by
exclusive reliance on state law. See Caterpillar, 482 U.S. at 392. In addition, “it is now settled
law that a case may not be removed to federal court on the basis of a federal defense . . . even if
the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the
federal defense is the only question truly at issue.” Caterpillar, 482 U.S. at 393 (emphasis in
the original) (citing Franchise Tax Board, 463 U.S. at 12). See also Beneficial National Bank v.
Anderson, 539 U.S. 1, 6 (2003); Metropolitan Life, 481 U.S. at 63; Chase Manhattan Mortgage
Corp., 507 F.3d at 915.
Ms. Hatton and Mr. Streeter have failed to establish this Court has original federal
question jurisdiction over this case. The state court complaint does not show this case arises
under the Constitution or laws of the United States. The complaint asserts solely state law
claims. Ms. Hatton and Mr. Streeter appear to contend that Mr. Muhareb committed “securities
fraud” and violated their due process rights under the United States Constitution in connection
with the state court eviction proceeding. However, even if Ms. Hatton and Mr. Streeter assert a
federal defense to the state court eviction action, the existence of a defense based upon federal
law is insufficient to support removal jurisdiction. Franchise Tax Board, 463 U.S. at 8-12;
Chase Manhattan Mortgage Corp., 507 F.3d at 914-15. Therefore, Ms. Hatton and Mr. Streeter
have failed to meet their burden of showing federal question jurisdiction in this matter.
In addition, Ms. Hatton and Mr. Streeter may not remove the state court action based on
the Court’s diversity jurisdiction under 28 U.S.C. § 1332. Removal based on diversity of
citizenship is proper only where the defendants are not citizens of the forum state. The removal
statute provides that a civil action “may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in which such action is brought.” 28
U.S.C. § 1441(b)(2). Even if there is complete diversity among the parties, the presence of a
properly joined and served resident defendant bars removal. Chase Manhattan Mortgage Corp.
Smith, 507 F.3d 910, 914 (6th Cir. 2007); Federal National Mortgage Association v. LeCrone,
868 F.2d 190, 194 (6th Cir. 1989). Because Ms. Hatton and Mr. Streeter are Ohio citizens,
removal on the basis of diversity jurisdiction is barred under § 1441(b). In any event, the
amount sought as damages in the state court complaint is “not in excess of $15,000.00,” which
fails to meet the $75,000 amount in controversy requirement for diversity jurisdiction under §
1332.
Accordingly, the Court lacks subject matter jurisdiction over this case.
IT IS THEREFORE RECOMMENDED:
1. This matter should be DISMISSED from the docket of the Court for lack of subject
matter jurisdiction.
2. This matter should be REMANDED to the state court. See 28 U.S.C. § 1447(c).
Date: 12/9/2022 Haren he Rethond
Karen L. Litk6vitz
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
WESAM MUHAREB, Case No. 1:22-cv-715
Plaintiff, Cole, J.
Litkovitz, M.J.
vs.
JOHN DOE, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).
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