United States District Court, D. Maryland
L. Hollander United States District Judge.
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. The state case
concerns divorce and child custody proceedings involving
Tanikka Michelle Watford Cunningham (“Ms.
Cunningham”), plaintiff, and Mr. Cunningham, defendant.
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.
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.
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.
reasons to follow, the Court will remand this case to the
Superior Court of Washington for Thurston County.
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).
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).
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.
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).
“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
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).
Diversity of the ...