Opinion
No. C-02-1389 PJH
May 13, 2002
ORDER GRANTING MOTION TO DISMISS
Before the court is the motion of defendants The Honorable Steve Austin, Joel Golub, Ken Torre, and Karen Ortega for an order dismissing the complaint for failure to state a claim and for lack of subject mailer jurisdiction. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion for the following reasons.
INTRODUCTION
Defendants in the present action are employed at the Superior Court of California, County of Contra Costa. Defendant The Honorable Steve Austin is a Judge of the Contra Costa Superior Court, defendant Joel Golub is a Commissioner of the same court; defendant Ken Torre is Chief Executive of the court; and Karen Ortega is employed in the office of the Clerk of the Court. Plaintiff William Jeffrey Gilliam ("Gilliam') seeks an order "restraining judicial officers and court administrative personnel . . . from any actions regarding the removed matters." He also seeks a declaratory judgment that the actions of the Contra Costa Superior Court, taken at a hearing on March 7, 2002, were "actions taken without subject matter jurisdiction, and therefore a nullity."
Gilliam contends that the present action "arises out of two separate removal actions" in case No. C-02-0499 VRW, also pending before the United States District Court, Northern District of California. Case No. C-02-0499 VRW was originally filed on August 22, 2000, as case No. 227783 in the Superior Court of California, County of Sonoma. In that action, plaintiff Joan Cooper ("Cooper') alleged that Gilliam had breached an agreement to pay a $95,000 debt, evidenced by a promissory note. On January 28, 2002, Gilliam filed a cross-complaint in the Sonoma County action against Cooper and the County of Sonoma, alleging claims under 42 U.S.C. § 1983 in connection with his detention and arrest by officers of the Sonoma County Sheriff's Department following a domestic altercation. The same day, he removed the case to this court on the basis of federal question jurisdiction. The removed case was assigned the case number C-02-0499 VRW.
Also on January 28, 2002, Gilliam filed a purported class action and derivative action complaint in case No. C-02-0498 MMC against Cooper and four other defendants, alleging federal racketeering and securities fraud claims, along with various supplemental state law claims. That complaint was dismissed with leave to amend on April 23, 2002.
On February 17, 2002, Cooper sought and received a temporary domestic violence restraining order against Gilliam in the Contra Costa Superior Court (case No. D02-00659). Cooper claimed that Gilliam had threatened her with physical violence "in order to obstruct justice' in connection with the breach of contract action pending in the Sonoma County Superior Court (and removed to this court on January 28, 2002). On February 18, 2002, following the Contra Costa Superior Court's issuance of a TRO and order to show cause, Gilliam filed a "responsive declaration" accompanied by a petition for writ of habeas corpus. In the "responsive declaration," Gilliam argued that the Contra Costa Superior Court lacked jurisdiction over the application for the restraining order because the Sonoma County action had been removed to federal district court, and also asserted that the evidence submitted by Cooper in support of the TRO application had been fabricated, possibly by Cooper.
On February 20, 2002, Gilliam lodged with the Clerk of this court, under case No. C-02-0499 VRW, a document entitled "Defendant's (Second) Notice of Removal," purporting to remove the Contra Costa Superior Court domestic violence restraining order proceeding (case No. D02-00659), on the basis of federal question jurisdiction. The "(Second) Notice of Removal" asserted that the Contra Costa Superior Court judge who issued the restraining order had acted "in excess of jurisdiction" in issuing the order absent proof that Gilliam had previously been convicted of an act of domestic violence; that employees of the Clerk's Office at the Contra Costa Superior Court had unlawfully refused to date-stamp or acknowledge the receipt of his petition for writ of habeas corpus, refused to serve the petition on the named respondents, and refused to set a hearing on the petition "within statutorily mandated 24 hours." Gilliam filed a copy of the "(Second) Notice of Removal" with the Clerk of the Contra Costa Superior Court.
The "(Second) Notice of Removal" was stamped "Received" but not "Filed" by the Clerk.
Gilliam asserted federal question jurisdiction based on a claim that the court's issuance of the restraining order and the clerk's refusal to accept the petition for writ of habeas corpus for filing violated his rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. He argued that the Contra Costa Superior Court had made
an improper, gender-based classification of defendant [Gilliam] as a "male accused of domestic violence;" and that he (and all similarly situated citizens) should be presumed and judged guilty when charged (even if they are not informed of the charge), sentenced, and barred from appeal without notice, opportunity to be heard, or any benefit of the Rights and Privileges of the Constitution.
Defendant's (Second) Notice of Removal, Case No. C-02-0499 VRW, dated February 20, 2002, at 3.
On March 7, 2002, the Contra Costa Superior Court conducted a hearing (at which Gilliam made no appearance) in case No. D02-00659, and issued an order restraining Gilliam from coming within 100 yards of Cooper, her residence, her place of work, or her vehicle; and ordering Gilliam to surrender or sell any firearm within his possession and control, and to participate in a certified batterer's program for 12 months with results of attendance to be reported to the court.
On March 21, 2002, Gilliam filed the present action, alleging that defendants acted "in excess of jurisdiction" in proceeding with the March 7, 2002, hearing and in issuing the restraining order because the Contra Costa Superior Court action had previously been removed to federal district court pursuant to the "(Second) Notice of Removal." Defendants now seek an order dismissing the case pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), or, in the alternative, remanding the action pursuant to 28 U.S.C. § 1447 (c).
DISCUSSION
A. Legal Standards
A court should dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim only where it appears beyond doubt that plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Pillsbury, Madison Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994). Review is limited to the contents of the complaint. Allarcom Pay Television. Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). In dismissing for failure to state a claim, "a district court should grant leave to amend even if no request to amend the pleadings was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citations omitted).
Federal courts can adjudicate only those cases which the Constitution and Congress authorize them to adjudicate — those involving diversity of citizenship or a federal question, or those to which the United States is a party. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Federal courts are presumptively without jurisdiction over civil actions, and the burden of establishing that a cause lies within this limited jurisdiction rests upon the party asserting jurisdiction. Id. Subject matter jurisdiction is fundamental and cannot be waived. Billingsly v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). The court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction. Id.
B. Defendants' Motion to Dismiss
Gilliam's request for injunctive and declaratory relief in this action is based upon his contention that the "(Second) Notice of Removal," which was lodged in case No. C-02-0499 VRW, operated to terminate the Contra Costa Superior Court of jurisdiction over the pending domestic violence restraining order proceeding. Defendants seek an order dismissing the present case, claiming that the domestic violence proceeding was never properly removed to this court, and that both the Anti-Injunction Act, 28 U.S.C. § 2283, and the principal of abstention set forth inYounger v. Harris, 401 U.S. 37, 49-53 (1971) prohibit this court from enjoining pending state court proceedings. Defendants also argue that the complaint states no valid basis for federal subject matter jurisdiction.
The removal statutes authorize the removal of "any civil action" that could have been filed in federal court originally. See 28 U.S.C. § 1441; City of Chicago v. Int'l College of Surgeons, 522 U.S. 156, 171 (1997). The procedures for removing an action from state to federal court are set forth in 28 U.S.C. § 1446. The removing defendant must comply with these procedures in order to invoke federal removal jurisdiction. Removal is accomplished only when the notice of removal is filed with the district court and filed with the state court in which the action is pending. 28 U.S.C. § 1446 (a), (d). The removing defendant must also attach copies of all state court pleadings, process, and orders that have been served by the plaintiff.Id. § 1446(a).
In addition to the requirements of § 1446, the removing defendant must comply with local federal court rules. In this district, the local rules applicable to plaintiffs in original proceedings apply to removing defendants. For example, the defendant must file a "civil cover sheet on a form approved by the Court," noting the nature of the removed action. Civ. L. Rule 3-8. Where applicable, the defendant must file a "notice of related case" and/or a "notice of pendency of other action or proceeding." Civ. L. Rule 3-12, 3-13. The removal papers must include a separate paragraph specifically stating the statutory basis for federal jurisdiction. Civ. L. Rule 3-5(a).
As stated above, Gilliam's "(Second) Notice of Removal" was never accepted for filing by the Clerk of this court. Because the notice of removal is the means of removing a case from state court to federal district court, where it is viewed as a "new" case and is assigned a "new" case number, a document labeled "second notice of removal" bearing an already existing case number would not provide notice to the clerk that a defendant intended to remove a state court action which had not previously been removed. At most, a "second notice of removal" might be used by a defendant seeking to remove a case that had previously been removed and subsequently remanded. See. e.g., Gibson v. Chrysler Corp., 261 F.3d 927, 931-32 (9th Cir. 2001). A case cannot be removed from state court to become part of an already existing federal case. Moreover, in this instance, Gilliam's intent was far from clear. It is not until page 3 that the "(Second) Notice of Removal" indicates what Gilliam is attempting to remove, and it then states that "the defendant herein is REMOVING the attached Order to Show Cause and Temporary Restraining Order." This statement in no way indicates that the defendant seeks to remove a state court case to federal court.
Gilliam argues in his opposition to defendants' motion that any "defect" in the notice of removal is "procedural," rather than "substantive," and therefore does not act to render his "Notice of Removal" ineffective. The fact remains, however, that the domestic violence restraining order action was never removed from Contra Costa Superior Court because it was never properly presented to the court for filing. Thus, the district court does not have jurisdiction in this action under the plain terms of the Anti-Injunction Act, which provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283.
Moreover, if a domestic violence restraining order case such as the one at issue here were removed from state court and assigned to the undersigned judge, the case would be remanded on the basis of Younger v. Harris abstention.
CONCLUSION
In accordance with the foregoing, the court hereby GRANTS defendants' motion to dismiss. Because the court finds that amendment would be futile, the dismissal is WITH PREJUDICE.This order fully adjudicates the motion listed at No. 4 on the clerk's docket for this case, and terminates the case and any pending motions.
IT IS SO ORDERED.