The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JENNIFER CURTIS, Case No. 1:24-cv-126
Administrator of the Estate of
Cawlena English,
Plaintiff, Barrett, J.
Litkovitz, M.J.
vs.
DEBORAH LEWIS, et al., REPORT AND
Defendants. RECOMMENDATION
Defendant Deborah Lewis filed a pro se notice of removal of a state court civil action to
the United States District Court. (Doc. 1, Att. 1). By separate Order, Ms. Lewis was 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 Ms. Lewis’s 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).
The removal petition alleges that Ms. Lewis is a party-defendant to a state probate court
action initiated in the Probate Court of Hamilton County, Ohio. The attachments to the petition
reflect that Jennifer Curtis, the Administrator of the Estate of Cawlena English, Deceased—who
is Ms. Lewis’s mother—filed a probate court complaint to sell real estate held by the decedent,
the proceeds of which were to be distributed to the decedent’s children. It appears the matter is
still pending before the state probate court.
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).
It appears Ms. Lewis seeks to remove the state probate court action to this federal court
based on federal question jurisdiction. (Doc. 1-1 at PAGEID 6).
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 the claim 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. Lewis has failed to establish this Court has original federal question jurisdiction over
this case. The state probate court complaint attached to the notice of removal does not show this
case arises under the Constitution or laws of the United States. Ms. Lewis appears to contend
that the Administrator of her deceased mother’s estate violated her rights under the United States
Constitution in connection with the state probate court proceedings. (Id. at PAGEID 6, 8).
However, even if Ms. Lewis asserts a federal defense to the state court probate 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. Lewis has failed to meet her burden of showing federal question jurisdiction in
this matter.
Assuming, arguendo, Ms. Lewis seeks removal based on the Court’s diversity jurisdiction
under 28 U.S.C. § 1332, removal is improper. 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. v. 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. Lewis is an Ohio citizen, removal on the basis of
diversity jurisdiction is barred under § 1441(b).
Accordingly, the Court lacks subject matter jurisdiction over this case.
IT IS THEREFORE RECOMMENDED:
1. Ms. Lewis’s petition for removal of a state probate court action to this federal court should
be DENIED.
2. This matter should be DISMISSED from the docket of the Court.
3. This matter should be REMANDED to the state probate court. See 28 U.S.C. § 1447(c).
4. The Court should certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an
appeal of this Order would not be taken in good faith and therefore deny Ms. Lewis leave to
appeal in forma pauperis. Ms. Lewis should be advised that she remains free to apply to
proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,
803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277
(6th Cir. 1997).
Date: _3/21/2024 Herm Ke Kethon
Karen L. Litkovitz
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JENNIFER CURTIS, Case No. 1:24-cv-126
Administrator of the Estate of
Cawlena English,
Plaintiff, Barrett, J.
Litkovitz, M.J.
vs.
DEBORAH LEWIS, 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).
5