Eiler v. Avera McKennan Hospital et al, No. 4:2014cv04172 - Document 5 (D.S.D. 2014)
Court Description: MEMORANDUM OPINION AND ORDER OF DISMISSAL. Signed by U.S. District Judge Lawrence L. Piersol on 12/12/14. (DJP)
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Eiler v. Avera McKennan Hospital et al Doc. 5 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION FILED DEC 12 2014 ***************************************************************************** ERIN EILER, Plaintiff, vs. AVERA MCKENNAN HOSPITAL and TREATING MEDICAL PERSONNEL, Defendants. * * * * * * * * * * * * CIV 14-4172 MEMORANDUM OPINION AND ORDER OF DISMISSAL ****************************************************************************** On November 19, 2014, Plaintifffiled a pleading entitled "Notice o fRemo val. " The caption and heading ofthe pleading are from a case appealed from South Dakota Circuit Court to the South Dakota Supreme Court. It appears from the Notice ofRemoval and the accompanying Memorandum that Plaintiff is attempting to remove a state court case she filed against Defendants for an alleged falsity or error in her medical records at Avera McKennan hospital. No forms ofprocess, pleadings, and orders for this case are attached as required by 28 U.S.C. ยง 1446(a). This Court must review all removed actions to confirm that federal jurisdiction is proper. The party seeking removal has the burden of establishing federal subject matter jurisdiction. In re Business Men's Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993). Removal jurisdiction is statutory and strictly construed. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941). Plaintiff s Notice ofRemoval suffers from numerous procedural and substantive deficiencies and fails to state a cognizable claim for relief under federal court jurisdiction. First, removal is available only to a defendant. 28 U.S.C. 1441(a) ("Except as otherwise expressly provided by Act ofCongress, any civil action brought in a State court ofwhich the district courts ofthe United States Dockets.Justia.com have original jurisdiction, may be removed by the defendant or the defendants, to the district court ofthe United States for the district and division embracing the place where such action is pending."). Further, whether or not a federal court has removal jurisdiction over a matter originally filed in state court must be determined from the face ofthe plaintiffs well-pleaded complaint as it existed at the time ofremoval. Gaming Corp. OfAmerica v. Dorsey & Whitney, 88 F.3d 536,542 (8th Cir. 1996) ("The 'well-pleaded complaint rule' requires that a federal cause ofaction must be stated on the face ofthe complaint before the defendant may remove the action based on federal questionjurisdiction."). Here, Plaintiffhas not provided the Court with a copy of her Complaint. The Court is thus unable to find the subject matter jurisdiction exists in this case. Accordingly, IT IS ORDERED that this matter is dismissed for lack ofjurisdiction. Dated this 12th day of December, 2014. BY THE COURT: wrence L. Pierso I United States District Judge ATTEST: JOSEPH HAAS, CLERK DEPUTY 2
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