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Cunningham v. Cunningham

United States District Court, D. Maryland

June 24, 2016



          Ellen L. Hollander United States District Judge.

         On May 31, 2016, Bryant Cunningham (“Mr. Cunningham”), a self-represented litigant, filed a Notice of Removal to this Court as to Case No. 13-3-01460-3, filed in the Superior Court of Washington for Thurston County. ECF 1.[1] The state case concerns divorce and child custody proceedings involving Tanikka Michelle Watford Cunningham (“Ms. Cunningham”), plaintiff, and Mr. Cunningham, defendant. ECF 2-6.[2]

         The parties’ divorce decree was signed by a judge in Washington on December 29, 2014. ECF 2 at 4. Then, on October 16, 2015, a judge in Washington issued an order of protection lodged against Mr. Cunningham. ECF 4. A judicial order directing Mr. Cunningham to pay child support followed on October 28, 2015. ECF 5; ECF 6. It is unclear whether the domestic case remains active in state court in Washington. See index.cfm?fa=home.caselist&init&rtlist=case.

         In his Notice of Removal, Mr. Cunningham states that the Washington Court has “automatically” been “divest[ed]” of jurisdiction by virtue of the Notice of Removal. ECF 1 at 2. He admonishes that “there will be NO more hearings, orders, or any other proceedings” in that court. ECF 1 at 2.

         In addition, Mr. Cunningham has filed a “Motion To Vacate Judgment For Lack of Subject Matter, Venue Jurisdiction And Personal Jurisdiction.” ECF 7, “Motion.” In his Motion, Mr. Cunningham asserts that he never “consented and or agreed to be subjected to a foreign state.” ECF 7 at 2 ¶ 2. He asserts a host of grounds to support his Motion. Id. at 2-3, ¶ 3. And, he complains that he “was rushed to an alleged judgment order” and “was not allowed to present a defense, was not allowed to confront the accuser, and was told . . . that [he] is prohibited from contacting his natural children . . . which on its face is cruel and unusual.” Id. at 3, ¶ 4. Moreover, Mr. Cunningham contends: “The Judgment was based on racial animus and sexual orientation bias of the Judge and Attorney for [Ms. Cunningham] (both of whom are homosexuals) . . .” He adds that “it is a known fact that the American Judicial System and Washington State Courts are notorious for their racial animus against Black men . . . .” Id. at 2 ¶ 6.

         For reasons to follow, the Court will remand this case to the Superior Court of Washington for Thurston County.


         Under the general removal statue, 28 U.S.C § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants. . . .” (Emphasis added.) “[J]urisdiction goes to the very power of the court to act.” Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008).

         “[B]efore a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court.” Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). Federal courts are courts of limited jurisdiction and “may not exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). “A court is to presume, therefore, that a case lies outside its limited jurisdiction unless and until jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). The “burden of establishing subject matter jurisdiction is on . . . the party asserting jurisdiction.” Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010); accord McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010).

         To obtain jurisdiction, a matter pending before this court must present either a federal question arising under the Constitution, laws, or treaties of the United States (28 U.S.C. § 1331), or involve diversity jurisdiction, i.e., a matter between citizens of different states where the amount in controversy exceeds $75, 000. See 28 U.S.C. §1332. The Notice of Removal invokes both diversity and federal question jurisdiction. ECF 1; ECF 1-1.

         A district court has “an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Of import here, “[s]ubject matter jurisdiction cannot be forfeited or waived, and can be raised by a party, or by the court sua sponte, at any time prior to final judgment.” In re Kirkland, 600 F.3d 310, 314 (4th Cir. 2010). Pursuant to Fed.R.Civ.P. 12(h)(3), “the court must dismiss the action” if it determines that the court lacks subject matter jurisdiction. See also Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006).

         Because “removal jurisdiction raises significant federalism concerns, ” a court “must strictly construe removal jurisdiction.” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)). Therefore, “any doubts should be resolved in favor of state court jurisdiction.” Barbour v. Int'l, Union, 640 F.3d 599, 617 (4th Cir. 2011) (en banc) (abrogated in part other grounds by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758 (Dec. 7, 2011)). See also Cohn v. Charles, 857 F.Supp.2d 544, 547 (D. Md. 2012) (“Doubts about the propriety of removal are to be resolved in favor of remanding the case to state court.”).

         The burden of demonstrating the propriety of removal rests with the removing party. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815 (4th Cir. 2004). As the removing party invoking federal jurisdiction, Mr. Cunningham bears the burden of establishing both jurisdiction and the propriety of removal. Mulcahey, 29 F.3d at 151 (“The burden of establishing federal jurisdiction is placed upon the party seeking removal.”). As the Court said in Mulcahey: “If federal jurisdiction is doubtful, a remand is necessary.” Id. When, as here, “a plaintiff files suit in state court and the defendant seeks to adjudicate the matter in federal court through removal, it is the defendant who carries the burden of alleging in his notice of removal and, if challenged, demonstrating the court’s jurisdiction over the matter.” Strawn v. AT&T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008).

         1. Diversity of the ...

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