Opinion
Case No. 2:04-CV-00304 DB.
June 15, 2004
ORDER
Before the Court is Plaintiff CACV of Colorado, LLC's Motion to Remand this case to the Third District Court, Salt Lake County, Sandy Department, State of Utah, pursuant to 28 U.S.C. § 1447(c) and Plaintiff's request for attorney fees. (Docket No. 3.) Having considered the parties' briefs, the record, and the relevant law, the Court issues the following Order.
On December 30, 2003, Defendant George Ipson was served, by a Salt Lake County Constable, with a summons to state court and a Complaint. The Complaint is a collection action on credit card debt filed by Plaintiff. The Complaint was filed in the Third District Court, Salt Lake County, Sandy Department, State of Utah on or about December 23, 2003. Defendant filed a responsive pleading in state court on January 16, 2004. Plaintiff moved for summary judgment, which Defendant opposed. The state court subsequently granted the motion for summary judgment. Judgment was entered on March 12, 2004 in favor of Plaintiff. On April 5, 2004, Defendant removed the case to federal court. Plaintiff filed the instant Motion to Remand, pursuant to 28 U.S.C. § 1447(c), on April 22, 2004.
Plaintiff's first basis for remand is that Defendant's removal of this action was untimely. "Notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief . . ." 28 U.S.C. § 1446(b) (2004) (emphasis added). Defendant was served with the Complaint on December 30, 2003 and removed the case over three months later on April 5, 2004. The notice of removal came after the allowed thirty days and is thus untimely.
Notwithstanding Defendant's procedural error, Defendant's conduct in the state court proceeding indicates a waiver of his right to remove this case. "The right to remove is waived by acts which indicate an intent to proceed in state court, and that defendants may not `experiment' in state court and remove upon receiving an adverse decision." Moore v. Permanente Medical Group, 981 F.2d 443, 447 (9th Cir. 1992). Defendant responded to the motion for summary judgment in state court and only after receiving an adverse judgment did he remove the case to federal court. By filing, in state court, a responsive pleading to the complaint and an opposition to the summary judgment motion, Defendant consented to the state court's jurisdiction and effectively waived his right to remove. In addition, the court will not permit Defendant to effectively appeal the unfavorable ruling rendered by the state court as such violates the principle of the Rooker-Feldman doctrine. The Rooker-Feldman doctrine "protects state-court judgments from impermissible appellate review by lower federal courts." Kenman Eng'g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002); Bleiberg v. Altvater, 2002 U.S. Dist. Lexis 10942 (U.S. Dist., 2002) (finding removal improper under Rooker-Feldman doctrine because inferior federal courts lack jurisdiction over cases that effectively seek review of judgments of state courts).
The court does not address Plaintiff's argument that removal was inappropriate on jurisdictional grounds due to the Court's ruling that removal was procedurally improper.
In light of Defendant's improper removal, the Court now addresses Plaintiff's request for attorney fees. Section 1447(c) of Title 28 of the United States Code "affords a great deal of discretion and flexibility to the district courts in fashioning awards of costs and fees." Morgan Guar. Trust Co. of New York v. Republic of Palau, 971 F.2d 917, 923-24 (2d Cir. 1992). Exercising its discretion the Court denies Plaintiff's request because Defendant is acting pro se and nothing before the court demonstrates bad faith in Defendant's errant removal.
For the foregoing reasons, the Court GRANTS Petitioner's § 1447(c) Motion to Remand, REMANDS this case to the Third District Court, Salt Lake County, Sandy Department, State of Utah, and DENIES Plaintiff an award of attorney fees.