Lvnv Funding Llc V Jones
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LVNV Funding LLC,
Plaintiff,
Civil Action 2:25-cv-802
v. Chief District Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
Jeremy Jones,
Defendant.
ORDER AND REPORT AND RECOMMENDATION
Defendant Jeremy Jones, an Ohio resident who proceeds pro se, removed this case from the
Fairfield County Municipal Court. The matter is before the Undersigned for consideration of
Defendant’s request to proceed in forma pauperis (Doc. 1). That request is GRANTED. But, after
sua sponte review of the filing, the Undersigned concludes that the Court lacks subject matter
jurisdiction. See 28 U.S.C. § 1915(e)(2)(B); Fed. R. Civ. P. 12(h)(3). Accordingly, the
Undersigned RECOMMENDS REMANDING the case back to state court and DISMISSING
the federal action.
I. BACKGROUND
About a month ago, Plaintiff LVNV Funding LLC brought an action against Defendant in
the Fairfield County Municipal Court. (Doc. 1-1). According to the Complaint, Defendant
defaulted on a repayment obligation and failed to pay Plaintiff an account balance of $705.41. (Id.
at 2). Plaintiff alleges it is entitled to recover that amount, and Defendant has been unjustly
enriched. (Id. at 2–3). Plaintiff seeks a judgment against Defendant for the $705.41, along with
statutory interest. (Id. at 3).
Defendant then removed the case to federal court. (Doc. 1-2). According to the Notice of
Removal, Defendant grounds the removal in federal question subject matter jurisdiction. (Id.
(citing 28 U.S.C. § 1331)). Specifically, Defendant says this case “arises under federal law,
including the Fair Debt Collection Practices Act . . . and the Constitution of the United States[.]”
(Id.).
When Defendant filed the Notice of Removal, he also filed what the Undersigned construes
as a counterclaim. (Doc. 1-3 (titled “Verified Complaint for Declaratory and Injunctive Relief and
Damages”)). The counterclaim names as “Counter-Defendants” LVNV Funding LLC and “Gina
M. Nennig for . . . Stenger & Stenger, P.C.” (Id.). It seems that Stenger & Stenger, P.C. provides
legal representation for LVNV Funding LLC, but it is not a named party in the Complaint. (Doc.
1-1 at 3 (Complaint signed by Ms. Nennig for Steger & Steger, P.C.)).
II. STANDARD
“Because Defendant proceeds [in forma pauperis], the Notice of Removal is subject to
review to determine if it is frivolous, malicious, or fails to state a claim upon which relief can be
granted.” Roberston, Anschutz, Schneid, Crane & Partners, PLLC v. Greenberg, No. 3:24-cv-
00591, 2024 WL 3488069, at *1 (M.D. Tenn. July 19, 2024) (citing 28 U.S.C. § 1915(e)(2)(B)
and collecting cases). Further, the Court must consider sua sponte whether it has subject-matter
jurisdiction to hear a case. Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1064 (6th Cir.
2014) (“‘Subject-matter jurisdiction can never be waived or forfeited,’ and courts are obligated to
consider sua sponte whether they have such jurisdiction.” (citation omitted)). If a court finds that
that it lacks subject matter jurisdiction, it must dismiss the case. Fed. R. Civ. P. 12(h)(3).
III. DISCUSSION
Under 28 U.S.C. §1441 “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 . . . to the district
court of the United States for the district and division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). In other words, “[o]nly state-court actions that originally could
have been filed in federal court may be removed to federal court by the defendant.” Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987). The burden to show a removal is proper―that the
federal court has original jurisdiction over the case―rests with the defendant. See, e.g., Village of
Oakwood v. State Bank and Trust Co., 539 F.3d 373, 377 (6th Cir. 2008); Ahearn v. Charter
Township of Bloomfield, 100 F.3d 451, 453–54 (6th Cir. 1996). Here, Defendant fails to meet his
burden.
As an initial matter, Plaintiff’s Complaint does not provide this Court with subject matter
jurisdiction. “Whether a claim arises under federal law for purposes of federal question
jurisdiction is governed by the ‘well-pleaded complaint’ rule, which provides that ‘federal
jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly
pleaded complaint.’” Archer v. Arms Tech., Inc., 72 F. Supp. 2d 784, 787 (E.D. Mich. 1999)
(citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). By the plain language of the
Complaint, Plaintiff alleges solely state law claims. (Doc. 1-1 at 2 (alleging one count of
“nonpayment of account” and one count of “unjust enrichment”)). Accordingly, the action could
not have been filed in federal court originally.
Still, Defendant invokes 28 U.S.C. § 1331 as a jurisdictional hook. 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.”). He states that this case arises under the Fair Debt
Collection Practices Act and the Constitution of the United States, seemingly referring to his
counterclaim. (Doc. 1-2; see also Doc. 1-3 (alleging “Counter-Defendants” LVNV Funding LLC
and Stenger & Stenger, P.C. violated the Fair Debt Collection Practices Act and infringed on
Defendant’s Fifth and Fourteenth Amendment rights)).
Defendant’s assertion is problematic because “[a] corollary to the ‘well-pleaded complaint’
rule is that a defendant may not remove a case to federal court on the basis of an affirmative defense
or counterclaim raising a federal question.” Archer, 72 F. Supp. 2d at 787 (citing Rivet v. Regions
Bank of La., 522 U.S. 470 (1998)); see also Clarkston v. Hubbard, 91 F.3d 143 (Table) (6th Cir.
1996). (“[T]he claim or right arising under federal law that provides the basis for federal
jurisdiction is the plaintiff’s claim or right. As a general rule, the federal question must be found
in the plaintiff’s ‘well-pleaded’ complaint, and not in the defendant’s notice of removal.”). A
federal “counterclaim does not change the character of [the state court plaintiff’s] complaint any
more than does the defendant’s other pleadings.” Border City Sav. & Loan Ass’n v. Kennecorp
Mortg. & Equities, Inc., 523 F. Supp. 190, 192 (S.D. Ohio 1981); cf. Rubin Lublin, PLLC v.
Greenberg, No. 3:24-CV-00752, 2024 WL 3544580 (M.D. Tenn. July 25, 2024) (“‘[T]he ‘civil
action . . . of which the district cour[t]’ must have ‘original jurisdiction’ is the action as defined by
the plaintiff’s complaint,’ not as defined by the defendant’s ‘filing of counterclaims that
included . . . allegations against a third party.’” (citing Home Depot U.S.A., Inc. v. Jackson, 587
U.S. 435, 139 (2019))). In short, “it is well settled that federal counterclaims . . . are ‘inadequate
to confer federal jurisdiction.’” Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 914–15
(6th Cir. 2007) (citation omitted); see also Barclays Bank Delaware v. Schmaltz, No. 2:23-CV-
4145, 2024 WL 1671422, at *2 (S.D. Ohio Apr. 18, 2024) (“Even if [the defendant] was permitted
to file a third-party ‘federal question’ complaint against [the plaintiff’s attorney] in the state court
proceeding, he would likely not be entitled to removal since he would be seeking to remove the
case in his capacity as a plaintiff, not as a defendant, which § 1441(a) does not permit.”)
Because Defendant’s only alleged basis for federal jurisdiction are counterclaims arising
under federal law, the Court lacks subject-matter jurisdiction and cannot hear this case. See
Anthony Marano Co. v. Sherman, 925 F. Supp. 2d 864, 865 (E.D. Mich. 2013) (“[A] district court
may remand sua sponte for lack of subject matter jurisdiction . . . .”); Warren Cnty. Child. Servs.
v. Hablutzel, No. 1:25-CV-126, 2025 WL 1032002 (S.D. Ohio Mar. 11, 2025) (remanding for lack
of subject matter jurisdiction on sua sponte review of a removal petition), report and
recommendation adopted, No. 1:25-CV-126, 2025 WL 889124 (S.D. Ohio Mar. 24, 2025).
Accordingly, the Undersigned RECOMMENDS REMANDING these proceedings back
to state court and DISMISSING the federal action.
IV. CONCLUSION
For the foregoing reasons, Defendant’s request to proceed in forma pauperis is
GRANTED. The Undersigned RECOMMENDS REMANDING the proceedings back to state
court and DISMISSING the federal action.
The Undersigned FURTHER RECOMMENDS that the Court certify under 28 U.S.C.
§ 1915(a)(3) that for the foregoing reasons, an appeal of any Order adopting this Report and
Recommendation would not be taken in good faith and therefore deny Defendant leave to appeal
in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Date: July 23, 2025 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence, or may
recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).