Glenville Homes III v. Cox

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

GLENVILLE HOMES, et al., ) CASE NO. 1:24 CV 1048

Plaintiffs, )

v. ) JUDGE DONALD C. NUGENT

LEARIA COX, )

) MEMORANDUM OPINION

Defendant. ) AND ORDER

Pro se defendant Learia Cox filed this removal action against Glenville Homes, Famicos

Foundation, Famicos Foundation Board Members, City of Cleveland, Judge Mona Scott, Daniel

Burns, and Magistrate Mark Wiseman. (ECF Nos. 1, 3). Ms. Cox filed two documents purporting

to be notices of removal. In the documents, Ms. Cox appears to request this Court remove her

state court eviction action from the Cleveland Municipal Court. She states that the basis for this

request is her amended counterclaim, in which Ms. Cox alleges defendants violated her

constitutional rights during the state court action. (/d.).

A defendant may remove “any civil action brought in a state court of which the district

courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). District courts have

original jurisdiction over civil actions that arise under federal law, see 28 U.S.C. § 1331, or that

involve parties of diverse citizenship and exceed $75,000 in controversy, see 28 U.S.C. § 1332.

The party seeking removal bears the burden of demonstrating that the district court has original

jurisdiction. Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 375 (6th Cir. 2007). And “because

lack of jurisdiction would make any decree in the case void and the continuation of the litigation

in federal court futile, the removal statute should be strictly construed and all doubts resolved in

favor of remand.” Eastman v. Marine Mech. Corp., 438 F.3d 544, 549-50 (6th Cir. 2006)

(alteration in original) (quoting Brown v. Francis, 75 F.3d 860, 864-65, 33 V.I. 385 (3d Cir.

1996)).

Federal question jurisdiction under 28 U.S.C. § 1331 is present only when a federal

question appears “on the face of the plaintiff's properly pleaded Complaint.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). Federal counterclaims

and defenses are “inadequate to confer federal jurisdiction,” and do not provide a basis for

removal. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S. Ct. 2058, 156 L. Ed. 2d 1

(2003) (“To determine whether the claim arises under federal law, we examine the ‘well

pleaded’ allegations of the complaint and ignore potential defenses . . . .”); see also Holmes

Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831-32, 122 S. Ct. 1889, 153 L.

Ed. 2d 13 (2002) (finding that, pursuant to the well-pleaded-complaint rule, a counterclaim

cannot serve as the basis for a federal court’s “arising under’ jurisdiction).

To remove a civil action from state court to federal court, the following pleading

requirements must be met: (1) the defendant or defendants must file in the district court a notice

of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a

short and plain statement of the grounds for removal, along with a copy of all pleadings and

orders served upon the defendant or defendants; and (2) the notice of removal must be filed

-2-

within 30 days of receiving the complaint or summons, whichever period is shorter, or within 30

days of receiving an amended pleading, motion, order, or “other paper” from which the

removability of the action may first be ascertained. 28 U.S.C. § 1446(a) and (b).

As an initial matter, this action has not been properly removed. The only documents filed

in this case are Ms. Cox’s “removal” and her “amended removal.” (See ECF Nos. 1, 3). Ms. Cox

has failed to file any pleadings from Cleveland Municipal Court. And it is not apparent from the

removal notices that Ms. Cox has timely filed a notice of removal. Additionally, Ms. Cox could

not have brought this action originally in federal court. Diversity of citizenship is not present,

and from the limited information provided in Ms. Cox’s removal documents, this action appears

to concern a state court eviction action. Such determinations are a matter of state law. And there

is no suggestion of a federal claim in the documents filed in this action. Moreover, Ms. Cox’s

counterclaims do not provide a basis for removal. Beneficial Nat'l Bank, 539 U.S. at 6. There is

therefore no valid basis for an exercise of federal removal jurisdiction in this case.

Accordingly, because Ms. Cox did not properly remove the action from the Cleveland

Municipal Court, it is not necessary to remand the matter to state court. The Court therefore

dismisses this action. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from

this decision may not be taken in good faith.

IT ISSO ORDERED. | |

DONALD C. NUGEN

United States District Judge

DATED: Ay wif 2, 202y