Opinion
No. CV-09-2011-PHX-LOA.
October 13, 2009
ORDER
In reviewing this file to independently determine whether the court has jurisdiction, it appears that the Government has not fully complied with 28 U.S.C. § 1446(a), the federal statute addressing removal procedure.
A review of the Maricopa County Superior Court website for this case,
http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/caseInfo.asp, exhibit 1, reveals that an Answer was filed in state court on September 11, 2009 but not docketed until September 24, 2009, the day before removal of the entire case to this District Court. (docket # 1) The Court has independently confirmed that the Answer filed on September 11, 2009 was that of Defendants City of Phoenix Housing Department and Matthew Henson Apartments.While the Government's stated basis for removal on the merits is pursuant to 28 U.S.C. §§ 1442(a)(1) and 2679(d)(2), nevertheless, the Government is required to comply with the statutory procedure for removing a case to federal court. Title 28 U.S.C. § 1446(a) provides as follows:
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.28 U.S.C. § 1446(a) (emphasis added). The state court's September 27, 2009 entry, entitled simply "Notice," is likely the Government's Notice of Removal.
The Court will direct counsel for the Government to promptly file an amended list of the state court filings, filed before September 25, 2009, and true and complete copies thereof, required by 28 U.S.C. § 1446(a) not already provided as an exhibit to its Notice of Removal.
On the Court's own motion,
IT IS ORDERED that counsel for the Government shall promptly file an amended list of the required state court filings, filed before September 25, 2009, and true and complete copies thereof, including the Answer filed on September 11, 2009 of Defendants City of Phoenix Housing Department and Matthew Henson Apartments; the affidavits of service of process, purportedly docketed on September 16, 2009; and any other documents required by 28 U.S.C. § 1446(a) not already provided as an exhibit to its Notice of Removal.
Exhibit 1
The Judicial Branch of Arizona, Maricopa County Case Information Case Number: Judge: File Date: Location: Case Type: Party Information Party Name Relationship Sex Attorney Case Documents Filing Date Description Docket Da NOTE: NOTE: NOTE: Case Calendar There are no calendar events on file Judgments There are no judgments on file
Civil Court Case Information — Case History CV2009-026619 Arbitration 01 ¦ Trujillo 8/20/2009 Downtown Civil Susana Brown Plaintiff Female Pro Per U S Housing Urban Development Defendant Pro Per City Of Phoenix Housing Dept Defendant Sharon Hay Mathew Henson Apts Defendant Sharon Hay 10/9/2009 324 — ME: Notice Of Appointment Of Arbitrator 10/9/2009 10/5/2009 OAA — Order Requiring Judgment Debtor To 10/9/2009 WAIVED 9/27/2009 NOT — Notice 9/28/2009 Notice of Errata REGARDING THE CASE NUMBER LISTED ON DEFENDANT MATHEW HENSON APARTMENT 9/11/2009 ANS — Answer 9/24/2009 PAID 9/11/2009 CAA — Cert Of Agreement/Arbitration 9/17/2009 9/9/2009 CAN — Credit Memo Appearance Fee Paid 9/16/2009 9/9/2009 NAR — Notice Of Appearance 9/16/2009 9/3/2009 AFS — Affidavit Of Service 9/16/2009 9/3/2009 AFS — Affidavit Of Service 9/16/2009 9/3/2009 AFS — Affidavit Of Service 9/16/2009 8/20/2009 COM — Complaint 8/24/2009 8/20/2009 ADW — Application Deferral/Waiver 8/24/2009 8/20/2009 ODF — Order Deferring Court Fees 8/24/2009 8/20/2009 ASA — Affidavit in Support of Application for Deferral or Waiver of Service Process Costs 8/24/2009 8/20/2009 CCS — Cerificate Arbitration — Subject To 8/24/2009