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Comenity Bank v. Smith

United States District Court, D. Delaware

April 5, 2017

COMENITY BANK, Plaintiff,
v.
CHARMANE SMITH, Defendant.

         General Sessions Court of Shelby County, Tennessee Case ID 1831787

          Charmane Smith, Memphis, Tennessee. Pro Se Defendant/Counterclaimant.

          MEMORANDUM OPINION

          ANDREWS, U.S. District Judge

         On December 16, 2016, Defendant/Counterclaimant Charmane Smith filed a notice of removal that references proceedings in the General Sessions Court of Shelby County, Tennessee.[1] (D.I. 2). Smith appears pro se and has been granted leave to proceed in forma pauperis. For the reasons discussed below, the Court will summarily remand the case to the General Sessions Court of Shelby County, Tennessee.

         FACTUAL AND PROCEDURAL BACKGROUND

         On November 8, 2016, a civil warrant issued in Portfolio Recovery Assoc, v. Smith, Case ID 1831787, in the Shelby County General Sessions Court. See Portfolio Recovery Assoc, v. Smith, Case ID 1831787 (Nov. 8, 2016). According to the court docket, Smith was served on November 19, 2016, and an "initial setting" is scheduled for May 2, 2017. (Id.) The nature of the case is unknown.[2]

         On December 16, 2016, Smith filed an application for removal pursuant to 28 U.S.C. § 1446(c)(2) based upon diversity of citizenship. (D.I. 2). The notice is captioned Charmane Smith, Counterclaimant v. Comenity Bank, Plaintiff, and attached to it is a Counterclaim authored by Smith. On January 3, 2017, Smith filed an addendum to an amended civil complaint even though neither a complaint nor an amended complaint has been filed with the Court. (D.I. 8).

         LEGAL STANDARD

         The exercise of removal jurisdiction is governed by 28 U.S.C. § 1441(a) which states that, in order to remove a civil action from state court to federal court, a district court must have original jurisdiction by either a federal question or diversity of citizenship. 28 U.S.C. §§ 1331, 1332, 1441(a). Section 1441(a) also provides that the action may be removed by the defendant to the district court of the United States for the district and division embracing the place where such action is pending.[3] Id. at § 1441(a). The statute is strictly construed, requiring remand to State court if any doubt exists over whether removal was proper. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104(1941).

         A court will remand a removed case "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). The party seeking removal bears the burden to establish federal jurisdiction. Steel Valley Auth. v. Union Switch & Signal Div. Am. Standard, Inc., 809 F.2d 1006, 1010 (3d Cir. 1987); Zoren v. Genesis Energy, LP., 195 F.Supp.2d 598, 602 (D. Del. 2002). In determining whether remand based on improper removal is appropriate, the court "must focus on the plaintiffs complaint at the time the petition for removal was filed, " and assume all factual allegations therein are true. Steel Valley Auth., 809 F.2d at 1010. Upon a determination that a federal court lacks subject matter jurisdiction, the District Court is obligated to remand, sua sponte, to the State court from which it was removed. See Scott v. New York Admin, for Children's Services, 2017 WL 775825, at *1 (3d Cir. Feb. 28, 2017).

         DISCUSSION

         Requisites for Removal.

         Initially the court notes that Smith failed to comply with the requisites for removal. She did not provide for the court's review any copies of process, pleadings, or orders from the state civil proceeding. See 28 U.S.C. ยง 1446(a). The Court takes judicial notice that the Plaintiff named in this removal action (Comenity Bank) is not the ...


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