United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
case concerns a state court eviction action. Defendants Layne
and Barbara Lindberg, appearing pro se, removed this action
from the Seventh Judicial Circuit Court of South Dakota.
(Docket 1). They assert this court has supplemental
jurisdiction over the action under 28 U.S.C. § 1367.
Id. at p. 6. Plaintiff NRZ REO Inventory Corp. moved
to remand the case to state court. (Docket 7). Defendants
oppose remand. (Docket 10).
court referred the pending motion to Magistrate Judge
Veronica L. Duffy pursuant to the court's standing order
of October 16, 2014, and 28 U.S.C. § 636(b)(1) for a
report and recommendation (“R&R”). (Docket
12). The magistrate judge recommended the motion to remand be
granted. (Docket 14). Defendants objected to the
R&R. Under the Federal Magistrate Act, 28
U.S.C. § 636(b)(1), if a party files written objections
to the magistrate judge's proposed findings and
recommendations, the district court is required to
“make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made.” Id. The court may
“accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge.” Id. For the reasons given below, the
court adopts the R&R in full and grants plaintiff's
motion to remand.
brought an action in South Dakota state court to evict
defendants from a house in Rapid City, South Dakota. (Docket
1-1 at pp. 2-3). The house is the subject of another case
recently dismissed by this court. See Lindberg et al. v.
Dimon et al., CIV. 17-5089, 2019 WL 1460644 (D.S.D. Mar.
27, 2019), appeal filed, 19-1883 (8th Cir. Apr. 30, 2019).
Defendants leased this house while it was in foreclosure
proceedings. Id. at *2. U.S. Bank purchased the
house during the foreclosure sale and conveyed it to
plaintiff through a quit claim deed. (Docket 1-1 at p. 2).
Defendants asserted the holder of the original mortgage, JP
Morgan Chase Bank, breached a contract to sell the house to
them. Dimon, 2019 WL at *4. The court concluded no contract
to buy or sell the house existed between any party and
defendants. Id. To the best of the court's
knowledge, defendants do not own or have any legal
relationship to the house.
may remove civil actions to federal court only if the claims
could have been originally filed in federal court.”
Cent. Iowa Power Co-op v. Midwest Indep. Transmission
Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009)
(citing 28 U.S.C. 1441(b)). “The district courts shall
have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75, 000 .
. . and is between citizens of different States[.]” 28
U.S.C. § 1332. Diversity actions “may not be
removed if any of the . . . defendants [are] a citizen of the
State in which such action is brought.” Id. at
determine whether plaintiff's complaint presents a
federal question, the court must “apply the well-pled
complaint rule. This long-standing doctrine ‘provides
that federal jurisdiction exists only when a federal question
is presented on the face of the plaintiff's properly
pleaded complaint.' ” Moore v. Kan. City Pub.
Schs., 828 F.3d 687, 691 (8th Cir. 2016) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987)). “[T]he question is, does a state-law claim
necessarily raise a stated federal issue, actually disputed
and substantial, which a federal forum may entertain without
disturbing any congressionally approved balance of federal
and state judicial responsibilities.” Grabel &
Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,
545 U.S. 308, 314 (2005). “[T]he plaintiff is master of
his claim and may avoid federal removal jurisdiction by
exclusive reliance on state law.” M. Nahas &
Co., Inc. v. First Nat. Bank of Hot Springs, 930 F.2d
608, 611 (8th Cir. 1991).
“jurisdiction does not provide an independent source of
removal separate from § 1441.” Motion Control
Corp. v. SICK, Inc., 354 F.3d 702, 705 (8th Cir. 2003).
Where “diversity jurisdiction d[oes] not permit removal
due to the prohibition of § 1441(b), ”
supplemental jurisdiction “does not provide an
independent basis for removal” and “removal [is]
improper.” Id. at 706. “The proponents
of federal jurisdiction bear the burden to establish federal
subject matter jurisdiction, and all doubts about federal
jurisdiction must be resolved in favor of remand.”
Moore, 828 F.3d at 691 (quotation omitted).
sole discernable objection is that the magistrate judge erred
by recommending remand. Defendants assert this case
“stems wholly from” their above-discussed other
case in this court and that the two cases are “based on
a common nucleus of operative facts.” (Docket 14 at pp.
4, 13). They complain the Clerk of Court refused to
consolidate this removed action with their other case.
Id. at p. 2. They ask the court to consolidate the
two cases to avoid remand. Id. at p. 3. The court
overrules defendants' objection because it has no subject
matter jurisdiction to entertain this matter.
is improper because the court has no diversity, federal
question or supplemental jurisdiction over the case.
Diversity cases may not be removed if any of the state-court
defendants are citizens of the state in which the action was
filed. 28 U.S.C. § 1441(b)(2). Defendants do not deny
their South Dakota citizenship; their removal notice and
objections both include South Dakota addresses in the