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Smalls v. Smalls

United States District Court, E.D. Virginia, Newport News Division

July 12, 2016

CHRIS SMALLS, Defendant.



         Before this Court is Plaintiff-wife Marvel 1 en Smalls's Motion to Remand filed pursuant to Title 28, United States Code, Section 1147 in response to Defendant-husband Chris Smalls's Notice of Removal. Plaintiff seeks to remand the matter to stale court for two reasons. First. Plaintiff argues that this Court lacks subject matter jurisdiction. Second, she asserts that even if this Court has subject matter jurisdiction. Defendant's Notice of Removal was untimely pursuant to Title 28, United Stales Code, Section 1147(b)(1). For the reasons discussed below. Plaintiffs Motion is GRANTED and this matter remanded to the Circuit Court of the City of Newport News for disposition.


         This matter is a continuing divorce action Plaintiff filed in the Circuit Court of the City of Newport News on January 23, 2008, On October 18, 2013. the Circuit Court issued an Arrearage Order stipulating the terms of Defendant's child support obligations to Plaintiff. The Circuit Court concluded after an ore tenus hearing that Defendant made SI.379 per month based on averages of his 2011 and 2012 income, plus an additional $405 in disability payments. Based on this information, the Circuit Court ordered Defendant to pay child support in the amount of $334.32 per month.

         The dispute did not end that day. On August 11, 2014. the Circuit Court issued a Final Divorce Decree and found Defendant in contempt for failing to pay his court-ordered child support obligations outlined in the October 18, 2013, Order. The court determined that Defendant owed Plaintiff over $16, 000 in unpaid child support and imposed a jail sentence of 12 months, or until Defendant reduced his arrearage by $7, 000. On October 21. 2015. the Circuit Court again found Defendant in contempt and sent him to the Newport News City Jail for a period of 16 days. ECF No. 5-2. Defendant was most recently found in contempt for failing to pay child support on February 16, 2016.

         Defendant claims lie could not meet the terms of the Final Divorce Decree because of his lack of financial resources. See Def.'s Opp'n. to Pl's Mot. to Remand at 3 (''ability to pay was not and has not been proven ... it is well documented that Defendant's sole source of income is SSI"). Since June 4, 2015, Defendant has filed approximately 21 various motions in the Newport News Circuit Court ranging from pleas to modify his child support obligations to motions to disqualify the presiding stale court judge. See Pls Notice and Mot. for Sanctions at 1. Nearly all have been unsuccessful. For example. Defendant filed a Petition for Garnishment Exception to prevent the court from attaching his Wells Fargo bank account in satisfaction of his child support debts. The Circuit Court determined that the account in question was closed and therefore never subjected to garnishment. See Order. June 11, 2015. ECF No. 2-1. On February 6, 2016, the Circuit Court found Defendant in contempt under Va. Code Ann. § S.01-271.1 for filing numerous motions based on "improper purpose|s"|, such as to harass or cause unnecessary delay or needless increase in the cost of litigation." On March 2. 2016, Plaintiff filed a Notice and Motion for Sanctions seeking to enjoin Defendant from filing additional pleadings without permission from the court and to recover reasonable attorney's fees. She filed a Notice on March 11, 2016. stating her intention to move for an award of sanctions on May 2, 2016.

         Defendant now seeks to protect his benefits in federal court. On April 11, 2016, Defendant acting pro se sent his Notice of Removal to Plaintiffs counsel with a copy to the clerk of the state court. On that same day, he moved in federal court for in forma pauperis, claiming that he is unemployed, entirely dependent on his SSI benefits for income, and cannot pay the fees of his litigation. The Court granted his motion on April 15, 2016. See Order on Application to Proceed without Prepayment of Fees, ECF No. 4. Plaintiff subsequently filed her Motion to Remand on May 10. 2016 attacking subject matter jurisdiction and the timeliness of removal. Defendant filed his Opposition to Plaintiffs Motion to Remand on May 26. 2016. in which he argues that removal is both appropriate and timely.


         Federal courts are courts of limited jurisdiction and the law presumes that an action lies outside this limited jurisdiction, unless stated otherwise by the Constitution or federal statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375. 377 (1994). In order to remove an action from state court to federal court, the movant must demonstrate that the action could have originally been filed in federal court. 28 U.S.C. § 1441. The movant must either show diversity of citizenship between the parties or that the matter in question "aris[es] under this Constitution, the Laws of the United States" pursuant to U.S. Const. Art. III. § 2. cl. 1. Removal power lies with the defendant, as the plaintiff has already chosen to commence the action in state court. 28 U.S.C. § 1441(a).

         The movant laces a heavy procedural burden to remove and must prove federal subject matter jurisdiction by a preponderance of evidence. Lien v. H.E.R.C. Prods., Inc., 8 F.Supp.2d 531. 532 (E.D. Va. 1998); see also Mukaheyv. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (affirming that the burden of demonstrating jurisdiction resides with the party seeking removal). The federal court must construe removal jurisdiction strictly because of the "significant federalism concerns" involved. Id. "'If federal jurisdiction is doubtful, a remand [to stale court] is necessary." Id., Therefore, the movant must state with precision what he hopes the federal court to rule on and why federal subject matter jurisdiction is proper. If the movant cannot meet this burden, the federal court must remand the matter.

         The party seeking to remand the matter to state court can challenge removal through multiple ways. The remanding party can contest subject matter jurisdiction by showing that the parties are not diverse, or the claim does not in fact arise under federal law. A motion to remand can also be based on a procedural defect, such as removal tardiness or failure to provide sufficient notice to the non-movani party. 28 U.S.C. 1447(c). The statute that governs the issue of removal timeliness, 28 U.S.C. 1446(b)(1), states in pertinent part:

The notice of removal of a civil action or proceeding shall be Fded within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days alter the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

Id. The 30 days begin to toll after the movant party receives a complaint which presents a removable claim. The facts supporting removal must be evident on the face of the complaint. determined by the "four corners of the applicable pleadings, not through subjective knowledge or a duly to make further inquiry." Lovern v. Genera Motors Corp. (4th Cir. 1997) 121 F.3d 160, 162. Under federal claim jurisdiction, the defendant need not speculate about removability at the commencement of a state action because he may remove alter receiving notice that that the action is. in fact, based on a federal claim. See Fritzlen v. Boatmen's Bank,212 U.S. 364, 372 (1909) ...

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