United States District Court, D. Maryland
DEBORAH A. KHALIL-AMBROUZOU Plaintiff,
JOHNNIE L. PARKER, JR. Defendant.
Xinis, United States District Judge
August 30, 2017, Johnnie L. Parker, Jr., claiming residency
in San Marcos, Texas, filed a fee-paid Notice of Removal (ECF
No. 1), seeking to remove from the Circuit Court for Prince
George's County a common law tort claim filed by his
mother, Deborah Khalil-Ambrouzou. A review of the state court
docket shows that Plaintiff filed this matter, styled
Khalil-Ambrouzou v. Parker, No. CAK16-46660, in
state court on December 17, 2016.The docket further shows that
Khalil-Ambrouzou had some difficulty formally serving process
on Parker, and that Circuit Court Judge Beverly J. Woodard
granted Khalil-Ambrouzou's renewed motion for alternative
point in the state court proceeding, Parker became aware that
the complaint had been filed against him. Parker, however,
contends that he has not yet received a copy of the summons
or complaint from Deborah Khalil-Ambrouzou's attorney.
ECF No. 14. Parker provided this Court uncertified copies of
his motion to dismiss, Khalil-Ambrouzou's motion for
order of default and default judgment, Khalil-Amborozou's
affidavit, his opposition to the motion for default, notice
of request for summons and notice of change of address,
notice of intention to defend, the state court docket sheet,
and his notice of removal, all of which were filed in the
Circuit Court for Prince George's County. ECF Nos. 2-9.
Parker did not, however, provide this Court a copy of the
state court complaint as required under 28 U.S.C. §
before the court is Khalil-Ambrouzou's Motion for Order
of Default and Default Judgment (ECF No. 3), Motion for Leave
to Proceed In Forma Pauperis, (ECF No. 16), and Motion to
Remand (ECF No. 18). Parker opposes the entry of default
judgment and the Motion to Remand. ECF Nos. 5 & 20.
Notice of Removal, Parker states that removal is appropriate
under 28 U.S.C. § 1332 “because there is complete
diversity of citizenship between the parties and the amount
in controversy exceeds $75, 000.00…exclusive of
interest and costs.” ECF No. 1. He provides proof of
domicile, namely a Texas driver's license dated August
15, 2017, and a Texas voter registration card dated September
28 U.S.C. § 1441(a) provides:
Except as otherwise expressly provided by Act of Congress,
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, to the district court of the United States for
the district and division embracing the place where such
action is pending.
Title 28 U.S.C. § 1447(c) provides that:
A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under
section 1446(a). If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded. An order remanding
the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of
the removal. A certified copy of the order of remand shall be
mailed by the clerk to the clerk of the State court. The
State court may thereupon proceed with such case.
action filed in state court may be removed to federal court
if it is one over which the district court maintains original
jurisdiction. 28 U.S.C. § 1441(a). The burden of
demonstrating jurisdiction or propriety of removal rests with
the removing party. Dixon v. Coburg Dairy, Inc., 369
F.3d 811, 815 (4th Cir. 2004); see also McBurney v.
Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010); Robb
Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362
(4th Cir. 2010). Therefore, “[i]f 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).
courts of limited jurisdiction, a federal court “may
not exercise jurisdiction absent a statutory basis.”
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 552 (2005). Further, a federal court must presume
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)). A federal 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);
see also Sucampo Pharmaceuticals, Inc. v.
Astellas Pharma, Inc., 471 F.3d 544, 548 (4th Cir.
2006). Indeed, a federal court “should construe removal
statutes narrowly, [with] any doubts...resolved in favor of
state court jurisdiction.” Barbour v. Int'l,
Union, 640 F.3d at 617 (abrogated in part on 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.”).
when determining diversity between citizens for removal
purposes, “[d]iversity must be established at the time
of removal.” Higgins v. E.I. DuPont de Nemours
& Co., 863 F.2d 1162, 1166 (4th Cir. 1988). That
said, “[d]iversity may be created after the filing of a
complaint through voluntary acts of the
plaintiff.” Yarnevic v. Brink's Inc.,
102 F.3d 753, 754 (4th Cir. 1996) (emphasis added).
“The rationale for this rule is that although a
defendant should not be allowed to change his domicile after
the complaint is filed for the sole purpose of effectuating
removal, there is no reason to protect the plaintiff against
the adverse consequences of his own voluntary acts.”
Id. at 754-55.
tort suit was filed in state court in 2016. To establish
proof of domicile, Parker presents two Texas identification
cards issued in August and September of 2017. ECF No. 1-2.
Khalil-Ambrouzou, however, presents a copy of Parker's
Maryland driver's license which was issued in October of
2014 and which remains valid through October of 2020. This
license reflects a Maryland residence for Parker. ECF No. 18.
Accordingly, Parker has not demonstrated that he was
not a Maryland resident as of August of 2016.
Parker, therefore, cannot demonstrate diversity of
citizenship at the time the Complaint was filed, and more to
the point, he cannot manufacture jurisdiction by presenting
evidence concerning possible residence for a time
after the filing of the Complaint. Lincoln Prop.
Co. v. Roche, 546 U.S. 81, 89 (2005) (citations
omitted). Additionally, because this Court does not retain
original jurisdiction over state common law tort claims, this
Court otherwise lacks jurisdiction over the matter. Plaintiff
Khalil-Amborozou's Motion to Remand shall be granted.
also moved for Leave to Proceed In Forma Pauperis. Because
Plaintiff was not the moving party who filed the Notice of
Removal, Khalil-Ambrouzou is not responsible for the payment
of the $400.00 ...