United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION FOR EMERGENCY STAY AND ORDER
DIRECTING THE CLERK TO ENTER PLAINTIFFS' CONTACT
INFORMATION ON THE DOCKET
Page Hood Chief United States District Judge
1, 2019, Defendant Michael J. Helvey, proceeding pro
se, filed a Notice of Removal of a civil action
originally filed before the Court of Common Pleas, Civil
Division, Delaware County, Ohio, No. 19-CVH-060331.
Plaintiffs Jeffrey Raymond Helvey and Jennifer Lynne Helvey
allege four counts in the Complaint against Defendant Michael
J. Helvey: Defamation (Count One); Defamation Per Se (Count
Two); Slander Per Se (Count Three); and, Intentional
Infliction of Emotional Distress (Count Four). Plaintiffs
seek damages in excess of $25, 000. (ECF No. 1, Complaint)
matter is before the Court on Defendant Michael J.
Helvey's Motion for Emergency Stay filed July 8, 2019.
(ECF No. 2) Defendant Michael J. Helvey seeks a 120 days stay
of a criminal matter filed in the Delaware Municipal Court of
Delaware, Ohio, No. 19-CR-B-01455. (ECF No. 2, PageID.92) Fo
r t h e r ea s o n s set forth below, the Court denies
Defendant Michael J. Helvey's Motion for Emergency Stay.
initial matter, the Court must first determine whether the
Court has jurisdiction over the matter and that the removal
by Defendant Michael J. Helvey was proper. It is noted that
Defendant Michael J. Helvey does not cite any statute or
authority which allows a defendant to remove a state court
action to a federal court located in a different state
(Michigan) from where the original action was filed (Ohio).
procedure for removal is set forth in 28 U.S.C. § 1446
which states in pertinent part:
(a) A defendant or defendants desiring to remove any civil
action ... from a State court shall file in the
district of the United States for the district and division
within which such action is pending a notice of
28 U.S.C. § 1446(a). The statute provides that Delaware
County is within the Southern District of Ohio,
Eastern Division, located at Columbus, St.
Clairsville and Steubenville. 28 U.S.C. § 115(b)(2).
Defendant Michael J. Helvey removed the action to the wrong
District. However, defects in removal procedure, such as
removal to the wrong federal district court, may be waived if
a plaintiff fails to file a motion to remand within thirty
days of removal. “Technical defects in the removal
procedure may not be raised sua sponte but may be
raised by a party within thirty days of removal or they are
waived.” Theriot v. HSBC Bank, No. 10-11617,
2010 WL 5390177, at *4 (E.D. Mich. Dec. 22, 2010) (citing 28
U.S.C. § 1447(c) and Page v. City of
Southfield, 45 F.3d 128, 133 (6th Cir. 1995). The Court
will address this issue if any plaintiff timely files a
motion for remand.
whether the Court has subject matter jurisdiction over this
matter, the Court addresses this issue in a separate Order to
Show Cause since the Court has authority to review whether
the Court has subject matter jurisdiction over a matter at
any time and on its own, sua sponte. Whenever it
appears by suggestion of the parties or otherwise that the
court lacks jurisdiction of the subject matter, the court
shall dismiss or remand the action, either by a
party's motion or the court's own motion.
MOTION FOR EMERGENCY STAY OF CRIMINAL MATTER
Defendant Michael J. Helvey's Motion for Emergency Stay
of the criminal matter before the Delaware Municipal Court,
this Court has no authority to stay the criminal matter in
this removed civil action. “As a general rule,
removability is determined by the pleadings filed by the
plaintiff, ” and “all doubts arising from
defective, ambiguous and in artful pleadings should be
resolved in favor of the retention of state court
jurisdiction.” Union Planters Nat'l Bank v.
CBS, Inc., 557 F.2d 84, 89 (6th Cir. 1977) (emphasis
added). The federal district court is a court of limited
jurisdiction. The district court is only empowered to hear
those cases that (1) are within the judicial power of the
United States as defined in Article III of the Constitution
and (2) that have been entrusted to the district court by a
jurisdictional grant of Congress. Hodgson v.
Bowerbank, 9 U.S. 303 (1809); Insurance Corp. of
Ireland v. Compagnie des Bauxites de Guinee, 456 U.S.
694 (1982). The presumption is that a federal court lacks
jurisdiction in a particular case until it has been
demonstrated that jurisdiction over the subject matter
exists. Lehigh Mining & Mfg. Co. v. Kelly, 160
U.S. 327, 337 (1895). The facts showing the existence of
jurisdiction must be affirmatively alleged in the Complaint.
McNutt v. General Motors Acceptance Corp., 298 U.S.
178 (1936); Fed.R.Civ.P. 8(a)(1). If these facts are
challenged, the burden is on the party claiming jurisdiction
to demonstrate that the court has jurisdiction over the
subject matter. Thomson v. Gaskill, 315 U.S. 442
(1942). A defendant cannot create removal jurisdiction merely
by raising a federal question as a defense. Her Majesty
the Queen in Right of the Province of Ontario v. City of
Detroit, 874 F.3d 332, 334, 344 (6th Cir. 1989) (Removal
can only be based on a theory advanced by the plaintiff.)
Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the
court shall dismiss or remand the action, either by
a party's motion or the court's own motion.
Fed.R.Civ.P. 12(h)(3); Liberty Mutual Ins. Co. v.
Wetzel, 424 U.S. 737 (1976).
Notice of Removal filed by Defendant Michael J. Helvey
removed a civil action filed by Plaintiffs Jeffrey Raymond
Helvey and Jennifer Lynne Helvey, as so noted above. The
Notice of Removal did not remove the criminal action
Defendant Michael J. Helvey now seeks this Court to enjoin
from moving forward. Even if Defendant Michael J. Helvey did
identify the criminal action in his initial Notice of
Removal, the Court lacks subject matter jurisdiction over the
criminal action identified in Defendant's Motion for
Emergency Stay in this removed civil action.
criminal action, the Summons on Complaint charges Defendant
Michael J. Helvey with five (5) violations of the Ohio
Revised Code or City/Village Code: (1) Telecommunications
Harassment, 2917.21(A)(1); (2) Telecommunications Harassment,
2917.21(B); (3) Telecommunications Harassment, 2917.21(B);
(4) Telecommunications Harassment, 2917.21(B); and, (5)
Telecommunications Harassment, 2917.21(B). (Doc. No. 2,
PageID.90) The criminal complaints attached by Defendant
Michael J. Helvey does not allege any federal claims. Only
state law criminal allegations, specifically violations under
the Ohio Revised Code, are stated in the five (5) criminal
complaints attached to Defendant Michael J. Helvey's
Motion to Stay. The arguments raised by Defendant Michael J.
Helvey in his Motion to Stay the criminal action cannot be
considered by the Court to determine subject matter
jurisdiction. The arguments of constitutional ...