United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
court held a hearing on the defendant's motion for an
injunction. The order setting the hearing advised the parties
that “[t]he court may sua sponte consider its
jurisdiction at any time following removal . . . . [and]
[t]he removal statute is to be strictly construed.”
(Docket 3 at p. 1).
court may sua sponte consider its jurisdiction at
any time following removal, see 28 U.S.C. §
1447(c); In Re Atlas Van Lines, Inc., 209 F.3d 1064,
1066-67 (8th Cir. 2000). The removal statute is to be
strictly construed. Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108 (1941). The court must
“strictly construe the removal statutes against removal
and resolve any doubts in favor of remand.” State
Farm Fire & Cas. Co. v. Valspar Corp., Inc., 824
F.Supp.2d 923, 932 (D.S.D. 2010) (internal citation omitted).
See also Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d
965, 968 (8th Cir. 2007) (The district court is required to
“resolve all doubts about federal jurisdiction in favor
courts are courts of limited jurisdiction. They may only
adjudicate cases within their stated jurisdiction under
Article III of the Constitution or a valid statute enacted by
Congress. Marbury v. Madison, 5 U.S. 137 (1803).
Every case brought in federal court must fall within the
court's subject matter jurisdiction. Id.;
Carton v. General Motor Acceptance Corp., 611 F.3d
451, 455 (8th Cir. 2010). “[T]he case should be
remanded if it appears that the district court lacks subject
matter jurisdiction.” In re Prempro Prods. Liab.
Litig., 591 F.3d 613, 620 (8th Cir. 2010).
procedure for removal of a civil case to federal court is set
forth in § 1446, which states in pertinent part:
The notice of removal of a civil action or proceeding shall
be filed 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 after 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.
28 U.S.C. § 1446(b).
December 14, 2018, Plaintiff Federal Home Loan Mortgage
Corporation (“Federal Home”), filed a summons and
complaint in the Seventh Judicial Circuit Court in Pennington
County, South Dakota, alleging pursuant to SDCL 21-49-38 that
Federal Home was entitled to possession of the real property.
(Docket 4 at p. 2). Raymond Elliott was served with the
summons and complaint for eviction on December 18, 2018.
Id. Mr. Elliott filed an answer to the complaint on
December 21, 2018. (Docket 4 at p. 3). On March 29, 2019,
Circuit Court Judge Robert Mandel entered a judgment of
eviction, further finding there were no genuine issue as to
any material fact and that Federal Home was entitled to
judgment as a matter of law. (Docket 1-1). Mr. Elliott filed
a notice of removal and motion for injunction and appeal
(hereinafter “Notice of Removal”) on April 15,
2019. (Docket 1).
Notice of Removal was not timely filed in Federal District
Court within the 30-day period required by 28 U.S.C. §
1446(b). Mr. Elliott was required to file his notice of
removal on or before January 17, 2019, and was not permitted
to wait until an adverse substantive decision was entered
against him in state court and then file the notice of
court assumes Mr. Elliott is asserting diversity of
citizenship under 28 U.S.C. 1332(a), because of the
allegation in the notice of removal “that the damages
exceed $75, 000.” (Docket 1 at p. 1). Mr. Elliott
acknowledges he is and has been a South Dakota resident since
1990. Id. at p. 3.
setting, the court may look to State Farm Fire &
Casualty Co. in which the court articulated the standard
for removal jurisdiction:
This court's original jurisdiction in diversity cases is
broader than its removal jurisdiction in diversity cases.
Compare 28 U.S.C. § 1332, with 28 U.S.C. §
1441. This court has removal jurisdiction over matters that
it would have had diversity jurisdiction under § 1332
had the action been filed in federal court originally
only if none of the defendants is a resident of the
state in which the state court action is pending at the time
removal is sought. See 28 U.S.C. § 1441(a) and
(b). Thus, assuming complete diversity of citizenship as
between all plaintiffs and all defendants, an action in which
a South Dakota citizen is a defendant may be filed originally
in federal district court for the District of South Dakota,
but if it is first filed in South Dakota state court, it may
not be removed to the District of South Dakota. Id.
State Farm Fire & Casualty Co., 824 F.Supp.2d at
941. Because Mr. Elliott is a resident of South Dakota,
plaintiff's case against Mr. Elliott is not removable on
the basis of diversity. See id.
the hearing, Mr. Elliott again made a motion for appointment
of counsel. The law is clear the district court does not have
jurisdiction to consider Mr. Elliott's claims. Appointing
an attorney to assist him at this juncture is not required
and an ...