Hunt v. Lamb

Full title: MARK J. HUNT, Plaintiff, v. FRANCHESKA LAMB aka FRANCHESKA HUNT, Defendant

Court: United States District Court, D. Kansas

Date published: Nov 16, 2005

Case No. 04-4047-JAR (D. Kan. Nov. 16, 2005)

Opinion

Case No. 04-4047-JAR.

November 16, 2005

ORDER

JULIE ROBINSON, District Judge

This action commenced on May 7, 2004, when Mark J. Hunt filed a Notice of Removal (Doc. 1) of an action pending in the District Court of Shawnee County, Kansas styled In the Matter of the Marriage of: Francheska Lamb (f.k.a. Hunt), Petitioner and Mark Joel Hunt, Respondent, Case No. 94D1144. Attached to the Notice of Removal was a "Temporary Exparte [sic] Residential Custody Order" ordering that temporary residency of the parties' minor children be with Francheska Lamb until further order of the court.

After removing the state action to this court, Mark J. Hunt filed a motion for leave to proceed in forma pauperis and a motion to appoint counsel. Magistrate Judge K. Gary Sebelius entered an Order (Doc. 6) denying the motion to appoint counsel and granting the motion to proceed in forma pauperis. Judge Sebelius further ordered Mark J. Hunt to file a Complaint on or before September 15, 2004, reciting his specific claims, identifying the defendants and identifying the relief he seeks. Mark J. Hunt acting pro se, filed an Amended Complaint (Doc. 8) on September 7, 2004.

This Court dismissed this case on September 24, 2004 under 28 U.S.C. § 1915(e)(2)(B), which allows a district court to dismiss a case filed in forma pauperis sua sponte if it fails to state a claim upon which relief may be granted. The Court dismissed the case for lack of subject matter jurisdiction under Rooker v. Fidelity Trust Co. ¹ and District of Columbia Court of Appeals v. Feldman ² because the case sought to review a state court decision. The Court further explained that it was required to abstain under Younger v. Harris ³ from issuing injunctive relief.

1 263 U.S. 413 (1923).

2 460 U.S. 462 (1983).

3 401 U.S. 37 (1971).

Hunt appealed the Court's decision, and on November 10, 2005 the Tenth Circuit Court of Appeals vacated this Court's order dismissing the case and instructed the Court to instead remand the case back to state court. Because the Court found it lacked subject matter jurisdiction over this action, it was required to remand the case under 28 U.S.C. § 1447(c) instead of dismissing it. The Court now revisits its prior decision and for the reasons explained in that order, remands the case back to the District Court of Shawnee County, Kansas under 28 U.S.C. § 1447(c).

IT IS SO ORDERED.