Opinion
04-4158-SAC.
December 16, 2004
MEMORANDUM AND ORDER
The case comes before the court on the named respondent Paul Joseph Ziegler's motion for immediate remand (Dk. 7) of this action removed to federal court by the named petitioner Janice Lynn King's pro se filing of a notice of removal (Dk. 1) and a motion in support of notice of removal (Dk. 2). Ms. King has filed a response opposing the motion to remand. (Dk. 9).
This is a court of limited jurisdiction, and it must refrain from exercising jurisdiction unless certain that such jurisdiction has been granted by Congress. See Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1182 (10th Cir. 2000) ("In light of the limited subject matter jurisdiction granted to the federal courts by Congress, we have a duty to satisfy ourselves that jurisdiction is appropriate."). The removing party carries the burden of demonstrating that removal was proper and that the federal court has original jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Federal removal jurisdiction is statutory in nature, and the governing statutes are to be strictly construed. Shamrock Oil Gas v. Sheets, 313 U.S. 100, 108-09 (1941); see Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 814 (1986). It is well-settled that the presumption is "against removal jurisdiction." Martin v. Franklin Capital Corp., 251 F.3d 1284, 1289(10th Cir. 2001) (citation omitted). Doubtful cases must be resolved in favor of remand. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied, 516 U.S. 863 (1995).
A defendant may remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). "A defendant or defendants desiring to remove any civil action . . . from a State court shall file in the district court of the United States for the district. . . ." 28 U.S.C. § 1446(a). Only state court defendants may remove an action. 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3731 (3d ed. 1998); see Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 107 (1941); Duckson, Carlson, Bassinger v. Lake Bank, N.A., 139 F. Supp. 2d 1117, 1119 (D. Minn. 2001) (plaintiffs have no right of removal). Thus, Ms. King as the petitioner in the state court action may not remove this action.
The notice of removal here asserts that federal court jurisdiction exists by reason of a claim or right arising under the Constitution, laws, or treaties of the United States. "Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). When the assertion of removal jurisdiction is based on federal question, the court generally relies on the "well-pleaded complaint rule," that is, an action arises under federal law "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Id. (citation omitted). In determining whether a "federal question" exists to justify removal jurisdiction, a court must look solely at the plaintiff's complaint rather than to any subsequent pleading or the notice for removal. Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1380 (10th Cir. 1978), cert. denied, 441 U.S. 952 (1979). The removing party attaches no initial complaint or initial petition that would support the exercise of federal question jurisdiction over this action, and removal jurisdiction cannot be predicated on any proposed counterclaims.
The notice of removal also cites 28 U.S.C. § 1443 which provides in relevant part:
Any of the following civil actions . . ., commenced in a State court may be removed by the defendant to the district court of the United States . . .:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or all persona within the jurisdiction thereof. . . .
Section 1443(1) removal petitions must meet a two-part test. People of State of Colorado v. Lopez, 919 F.2d 131, 132 (10th Cir. 1990). "First, it must appear that the right allegedly denied the removal petitioner arises under a federal law providing for specific civil rights stated in terms of racial equality." Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (quotation and citation omitted). "Second, it must appear in accordance with the provisions of § 1443(1), that the removal petitioner is denied or cannot enforce the specified federal rights in the courts of the State." Id. (quotation and citation omitted). The petitioner's notice of removal plainly does not satisfy the requirements for removal of a civil rights case under § 1443. There are no allegations that the state court claims implicate specific civil rights protecting racial equality or that such rights were denied or cannot be enforced in state court.
Being a creature of statute, removal jurisdiction comes with certain procedures and requirements that are mandatory by nature. Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D. Kan. 1996) (and cases cited therein). By statute, the notice of removal must "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 upon which such action or proceeding is based." 28 U.S.C. § 1446(b). The thirty-day time limitation is not a jurisdictional requirement, but it is a procedural requirement that is strictly enforced. Henderson v. Holmes, 920 F. Supp. at 1187. The petitioner has not shown compliance with the time limitations for removal.
In ordering remand, a court "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). Such an award is committed to the wide discretion of the district court and does not depend on any finding that the removal was in bad faith. Daleske v. Fairfield Communities, Inc., 17 F.3d 321, 324-25 (10th Cir.), cert. denied, 511 U.S. 1082 (1994). The propriety of removal is the central issue in deciding whether to allow expenses and costs. Id. The court will require the removing party, Janice Lynn King, to pay $200 to the counsel for the named respondent, Paul Joseph Ziegler, for attorney's fees and costs expended in defending this frivolous removal litigation.
The court believes this sum is less than the actual expenses and costs incurred by the petitioner's counsel in filing the motion to remand challenging federal jurisdiction of this action. Nonetheless, the court is satisfied that the award of $200 is fair and reasonable in light of the pro se status of the removing party and the in forma pauperis filing of this action.
IT IS THEREFORE ORDERED that this case from the District Court of Shawnee County, Kansas, No. 99-D-2559, is remanded, and the Clerk of the Court is directed to mail certified copies of this order of remand to the Clerk of the District Court for Shawnee County, Kansas.
IT IS FURTHER ORDERED that Janice Lynn King is ordered to pay $200 to the respondent, Paul Joseph Ziegler, pursuant to 28 U.S.C. § 1447(c) through his attorney, Susanna vanGelder Coxe.