Filed: Apr. 05, 2012
Latest Update: Apr. 05, 2012
Summary: ORDER WILLIAM H. STEELE, Chief District Judge. This matter is before the Court on the notice of removal filed by Sidney Lewis. (Doc. 1). According to Lewis, he has been sued by the plaintiff in the Circuit Court of Wilcox County but has not been served with the summons or complaint. Although the plaintiff knows his residence address, he recently obtained an order for service by publication based on what Lewis believes to be a false affidavit. Lewis removed on the basis of diversity of citizen
Summary: ORDER WILLIAM H. STEELE, Chief District Judge. This matter is before the Court on the notice of removal filed by Sidney Lewis. (Doc. 1). According to Lewis, he has been sued by the plaintiff in the Circuit Court of Wilcox County but has not been served with the summons or complaint. Although the plaintiff knows his residence address, he recently obtained an order for service by publication based on what Lewis believes to be a false affidavit. Lewis removed on the basis of diversity of citizens..
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ORDER
WILLIAM H. STEELE, Chief District Judge.
This matter is before the Court on the notice of removal filed by Sidney Lewis. (Doc. 1). According to Lewis, he has been sued by the plaintiff in the Circuit Court of Wilcox County but has not been served with the summons or complaint. Although the plaintiff knows his residence address, he recently obtained an order for service by publication based on what Lewis believes to be a false affidavit.
Lewis removed on the basis of diversity of citizenship and federal question. (Doc. 1 at 2 & Attachment 1). He did not attach to his notice of removal a copy of the complaint, as required by 28 U.S.C. § 1446(a), because he says he has never received it. Whether or not his removal before receiving the complaint constitutes a procedural defect which would support remand on timely motion,1 his failure to submit the complaint precludes him from carrying his burden of establishing the existence of federal jurisdiction. "A removing defendant bears the burden of proving proper federal jurisdiction." Adventure Outdoors, Inc. v. Blomberg, 552 F.3d 1290, 1294 (11th Cir. 2008) (internal quotes omitted). "[T]o meet their burden, the defendants must show that the plaintiff's complaint ... provides an adequate basis for the exercise of federal jurisdiction." Id. at 1295. Without the complaint, Lewis cannot possibly carry his burden.2
"Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it." Hertz Corp. v. Friend, 130 S.Ct. 1181, 1193 (2010); accord Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). Furthermore, "once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue." Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1092 (11th Cir. 2010) (internal quotes omitted). By statute, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
For the reasons set forth above, this action is remanded to the Circuit Court of Wilcox County.
