Opinion
No. CV-F-02-5178 REC/DLB
April 8, 2002
ORDER DEEMING PLAINTIFFS' OBJECTION TO REMOVAL TO FEDERAL COURT TO BE MOTION TO REMAND AND DENYING DEEMED MOTION TO REMAND
On January 24, 2002, plaintiff Mark Charles DeVries, proceeding in pro per, filed a Complaint in the Kern County Superior Court. The Complaint alleges that DeVries is proceeding "in his own person, and as agent for DMI MECHANICAL, MAGNUM PROPERTY MANAGEMENT, SUNSET INVESTMENT and TIGE EQUIPMENT". Named as defendants are Douglas G. McDonald, Fred Chenowith, Mission Bank, and Does 1-100. The Complaint alleges that plaintiffs had contracted with Mission Bank for the deposit of funds for checking accounts, that Mission Bank breached the contracts by taking all of plaintiffs' funds from these checking accounts; that defendants conspired to convert these monies to uses within the control of defendants; that McDonald and Chenowith have committed libel and slander against DeVries and DMI Mechanical by stating that they fail and refuse to pay their obligations; and that McDonald and Chenowith entered DeVries' property without plaintiff's consent or authority. The Complaint alleges eleven causes of action.
The court advises Mr. DeVries that unless he is an attorney licensed to practice in the State of California, he cannot appear for or represent either Magnum Property Management, Sunset Investment or Tige Equipment in this action. See In re America West Airlines, 40 F.3d 1058 (9th Cir. 1994); C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th Cir. 1987); Rule 83-183, Local Rules of Practice. Failure to obtain counsel to represent these unincorporated associations will result in the dismissal of these plaintiffs from this action.
On February 6, 2002, defendants McDonald and Chenowith filed a Notice of Removal, asserting that they are employees of the Internal Revenue Service and that, although not specifically alleged in the Complaint, it is believed that federal defenses regarding the collection of taxes and immunity of federal officers will be raised.
28 U.S.C. § 1442 (a)(1) provides for removal of a civil action against "any officer of the United States or any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the collection of the revenue."
On March 4, 2002, DeVries, captioning himself as "the living, breathing, sentient man known by the appellation `Mark Charles; DeVries'©, Sui Juris", filed an objection to the removal of the action to this court. The court deems this objection to be a motion to remand.
In so objecting, plaintiffs deny that the Internal Revenue Service is an agency of the United States government. Therefore, plaintiffs argue, McDonald and Chenowith, as employees of the Internal Revenue Service, are not entitled to removal. Plaintiffs challenge to removal is based on the fact that the Internal Revenue Service is a bureau of the Department of the Treasury under the immediate direction of the Commissioner of Internal Revenue. 26 C.F.R. § 601.01.
However, 28 U.S.C. § 451 defines "agency" for purposes of Title 28 as including "any department, independent establishment, commission, administration, authority, board or bureau of the United States." Therefore, this objection to removal is without merit.
Plaintiffs further object to the removal of this action on the ground that this court is not an Article III court and, therefore, defendants have not shown that this court has jurisdiction over this action. Plaintiffs' argument is based on the contention that only the "District Court of the United States" is an Article III court and, therefore, removal to the "United States District Court for the Eastern District of California" precludes the exercise of jurisdiction. This objection to removal is frivolous. Congress created this court pursuant to Article III of the Constitution. See 28 U.S.C. § 84 132.
Finally, plaintiffs object to the removal on the ground that the defensive involvement of a federal statute is not a sufficient ground for removal. However, the United States Supreme Court explains:
To remove a case as one falling within federal-question jurisdiction, the federal question ordinarily must appear on the face of a properly pleaded complaint; an anticipated or actual federal defense generally does not qualify a case for removal . . . Suits against federal officers are exceptional in this regard. Under the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law.
Jefferson County v. Acker, 527 U.S. 423, 431 (1999).
ACCORDINGLY, IT IS ORDERED that plaintiffs' Objection to Removal to Federal Court is deemed to be a motion to remand.
IT IS FURTHER ORDERED that the deemed motion to remand is denied.