United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON UNITED STALES DISTRICT JUDGE.
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.
PROCEDURAL AND FACTUAL HISTORY
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.
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.
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.
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.
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).
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.
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)