Opinion
Civil Action 23-cv-01799-STV
09-18-2023
RACHEL ZINNA GALAN, Plaintiff, v. JACOB BELLINSKY, Defendant.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge.
This matter is before the Court upon Defendant's Response to this Court's Order to Show Cause (the “Response”). [#14] For the following reasons, the Court ORDERS that the Clerk of Court reassign this matter to a District Judge, and respectfully RECOMMENDS that this case be remanded to the Gilpin County District Court.
Defendant, proceeding pro se, filed a Notice of Removal from the Gilpin County District Court on July 17, 2023. [#1] The Notice of Removal purports to remove Plaintiff's “most-recent unlawful and illegal and therefore void proceeding in void Colorado First Judicial District case #2015DR7,” apparently referring to a “Motion to Relocate” filed by Plaintiff in that state court action. [Id. at 1 (emphasis in original); see also #1-1 (a “Motion to Relocate Children” filed in the Gilpin County District Court)] The Notice of Removal asserts that federal question jurisdiction exists over the Motion to Relocate because it was written by Plaintiff's attorney and not Plaintiff herself [id. at 4-5], and violates Defendant's constitutional rights as it seeks “to completely eliminate [Defendant] from the raising of” certain of his children and inhibit Defendant's ability to “instruct and otherwise raise his children in the Jewish faith” [id. at 5-6 (emphasis in original)].
The Court is mindful that “[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992)).
On July 25, 2023, the Court issued an Order to Show Cause. [#8] The Court brought to Defendant's attention the domestic relations exception to federal jurisdiction, which “divests federal courts of the power to issue divorce, alimony, and child custody decrees.” [Id. at 2 (quoting Leathers v. Leathers, 856 F.3d 729, 756 (10th Cir. 2017))] The Court explained that because Defendant appeared to seek the removal of an ongoing domestic-relations matter, the Court lacked jurisdiction over the dispute and must remand to state court. [Id. at 2-3] Accordingly, the Court ordered that, on or before August 8, 2023, Defendant show cause, in writing, why this case should not be remanded due to the Court's lack of subject matter jurisdiction. [Id. at 3] After receiving an extension of time to respond, Defendant filed the Response on September 5, 2023. [#14]
In the Notice of Removal, Defendant contends that this Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1331. [#1 at 4-8] Under Section 1331, “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” “Under 28 U.S.C. § 1441(a), a defendant in a state court civil action may remove the action to federal court if the federal court has original jurisdiction over the action.” Hunt v. Lamb, 427 F.3d 725, 726 (10th Cir. 2005) “In other words, removal is reserved for those cases ‘that originally could have been filed in federal court.'” Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).
“A federal court must in every case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction, and the court is not bound by the acts or pleadings of the parties.” Citizens Concerned for Separation of Church & State v. City & Cty. of Denver, 628 F.2d 1289, 1301 (10th Cir. 1980). Accordingly, even “[i]f the parties do not raise the question of lack of jurisdiction, it is the duty of the federal court to determine the matter sua sponte.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Because federal courts are courts of limited jurisdiction, the Court must “presume no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction.” United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.1999). Defendant, as the party removing this case to federal court, thus bears the burden of establishing jurisdiction by a preponderance of the evidence. Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013).
“[F]ederal courts lack jurisdiction over domestic-relations cases.” Alfaro v. Cnty. of Arapahoe, 766 Fed.Appx. 657, 659 (10th Cir. 2019) (citing Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)). “The domestic relations exception divests federal courts of the power to issue divorce, alimony, and child custody decrees.” Leathers, 856 F.3d at 756 (citing Ankenbrandt, 504 U.S. at 703). This exception to federal jurisdiction applies in matters based on a court's federal question jurisdiction. Winters v. Kansas Dep't of Soc. & Rehab. Servs., No. 10-2181-JAR, 2011 WL 166708, at *5 (D. Kan. Jan. 19, 2011) (collecting cases), aff'd, 441 Fed.Appx. 611 (10th Cir. 2011).
As explained in the Order to Show Cause, Defendant appears to seek the removal an on-going domestic-relations matter, which would require this Court to preside over, among other domestic-relations matters, an apparently pending child custody dispute seeking relocation of children. [See #1-1] In the Response, Defendant argues that “[P]laintiff's ONLY available forum for her relocation matter was the federal court,” and that Colorado “‘family courts' . . . have limited jurisdiction . . . which does not extend to [the Motion to Relocate].” [#14 at 1] Defendant, however, cites to no authority permitting a federal court to decide this child custody dispute and ultimately issue a child custody decree relating to the Motion to Relocate. Once again, “[t]he domestic relations exception divests federal courts of the power to issue . . . child custody decrees.” Leathers, 856 F.3d at 756 (citing Ankenbrandt, 504 U.S. at 703). Moreover, Colorado law expressly contemplates state courts handling “cases in which a party with whom the child resides a majority of the time is seeking to relocate with the child to a residence that substantially changes the geographical ties between the child and the other party.” Colo. Rev. Stat. § 14-10-129(1)(a)(II). This matter could not have “originally . . . been filed in federal court,” making Defendant's purported removal improper. Hunt, 427 F.3d 725, 726 (10th Cir. 2005) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).
Defendant further argues that he “does not seek removal of the domestic relations case,” but only of the “‘relocation' matter”-which the Court understands to mean the Motion to Relocate. [#14 at 2] As discussed above, Defendant provides no authority for the assertion that a federal court could exercise jurisdiction over the Motion to Relocate, and the Court finds none. Moreover, Defendant appears to be advocating for a theory of “partial removal,” which “is simply not contemplated by the removal statute.” Black v. Black, No. 22-CV-03098-DDD-NRN, 2023 WL 1989793, at *11 (D. Colo. Feb. 14, 2023), report and recommendation adopted, No. 22-cv03098-DDD-NRN, 2023 WL 3976422 (D. Colo. Apr. 5, 2023); see also 28 U.S.C. § 1441(a) (permitting the removal of “any civil action”). “[A] party may not remove a single motion from an on-going state court case to federal court.” Black, 2023 WL 1989793, at *11. Instead, “it is the entire case, not the discrete motion, which is properly removed to federal court.” Id. at *13. Thus, Defendant's attempt to remove a discrete motion from the on-going state court matter is improper, especially considering the fact that the state court matter is a domestic relations case that falls outside of this Court's jurisdiction.
Finally, Defendant argues that this Court “has jurisdiction to adjudicate and redress [Defendant's] federal grievances and requests for [relief],” citing to cases where federal courts exercised jurisdiction over claims that arose out of domestic relations disputes. [#14 at 5] It appears that Defendant believes that he has grounds to raise constitutional or other federal claims or defenses relating to or arising out of the state court proceedings. However, remand is still required to the extent that Defendant seeks removal to vindicate his federal rights. Hunt, 427 F.3d at 727. “[A] case may not be removed to federal court solely because of a defense or counterclaim arising under federal law.” Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1247 (10th Cir. 2005); see also Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (“[F]ederal jurisdiction generally exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” (quotation and emphasis removed)). Defendant, through filing a notice of removal as opposed to a complaint, is not bringing any new claims, but seeking the removal of an on-going state court matter over which this Court lacks jurisdiction. See Fed.R.Civ.P. 3 (“A civil action is commenced by filing a complaint with the court.”). While a federal court may, perhaps, possess jurisdiction over a separately brought suit alleging violations of Defendant's federal rights arising out of the series of events alluded to by Defendant, this Court certainly lacks jurisdiction over the state court proceedings themselves.
While 28 U.S.C. § 1443 provides an exception to this rule to address the violation of a right to racial equality that is unenforceable in state court, there is nothing in Defendant's notice of removal that suggests that § 1443 applies in this matter. Hunt, 427 F.3d at 727.
The Court notes, however, that to the extent that Defendant seeks to challenge a state court's final judgments or asserts claims that would interfere with ongoing state court proceedings, such claims would likely be barred by the Rooker-Feldman doctrine or by the Younger abstention doctrine.
Ultimately, the domestic-relations matter which Defendant purports to remove plainly could not have been filed originally in federal court, meaning that this Court lacks jurisdiction over this dispute upon its removal and must remand to matter to state court. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”); Hunt, 427 F.3d at 727 (“As the district court lacked jurisdiction over Hunt and Lamb's child custody dispute, it was required by 28 U.S.C. § 1447(c) to remand the action to state court.”).
Accordingly, the Court ORDERS that the Clerk of Court reassign this matter to a District Judge, and respectfully RECOMMENDS that this case be REMANDED to the Gilpin County District Court.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).