Opinion
CV 21-33-H-BMM-KLD
06-07-2021
MICHAEL KNIGHT, Plaintiff, v. MONTANA DEPARTMENT OF CORRECTIONS, et al., Defendants.
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
Kathleen L. DeSoto United States Magistrate Judge
On May 3, 2021, Plaintiff Michael Knight filed a notice of removal in this Court. Knight wishes to “transfer his complaint filed in the State District Court” under No. DV-20-85 to the federal court. Notice of Removal (Doc. 1) at 1. He notes that, at least as of May 1, 2021, see id. at 3, the Defendants had not appeared, see id. at 2.
A civil action filed in state court “may be removed by the defendant or the defendants” to federal court. 28 U.S.C. § 1441(a); see also 28 U.S.C. §§ 1443, 1446(a). Knight is the plaintiff in the civil action he seeks to remove. “The right to remove a state court case to federal court is clearly limited to defendants.” American Int'l Underwriters, (Philippines), Inc. v. Continental Ins. Co., 843 F.2d 1253, 1260 (9th Cir. 1988) (discussing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)). Knight's purported removal of the action from state court was improper and failed to confer subject-matter jurisdiction on this Court. Accordingly, the action should be remanded to Montana's Third Judicial District Court. See Oregon Egg Producers v. Andrew, 458 F.2d 382, 383 (9th Cir. 1972) (per curiam). The District Court should certify that any appeal from its disposition would not be taken in good faith. See Fed. R. App. P. 24(a)(4)(B); see also 28 U.S.C. § 1447(d).
Knight also asks that copies of all filings in the case be served on his wife at her email address. He states that she holds a power of attorney. See Pl. Request (Doc. 3) at 1. If properly formalized under state law, a power of attorney is a means of giving one person legal authority over specified property or decisions of another person. See, e.g., Mont. Code Ann. §§ 72-31-301 through 72-31-367. But a person who holds a power of attorney is not an attorney at law. Mrs. Knight cannot sign documents on Mr. Knight's behalf or otherwise represent him in this Court because she has not been admitted to its bar. See D. Mont. L.R. 83.1(a)(2), (b)(1), 83.8(a) (Dec. 1, 2019). For that reason, she will not receive service from the Court. But anyone may view the electronic record of a case and documents filed within it by opening a PACER account through the United States Courts. See https://pacer.uscourts.gov/register-account/non-attorney-filers-cmecf (accessed June 4, 2021). At this time, the District of Montana is a CurrentGen court.
IT IS ORDERED that Knight's request that the Court serve documents on his wife (Doc. 3) is DENIED.
IT IS RECOMMENDED:
1. This action, bearing No. DV-20-85 in Montana's Third Judicial District Court, should be REMANDED to that court.
2. Pursuant to 28 U.S.C. § 1447(c), the clerk should be directed to deliver to the state court a certified copy of the order remanding the case.
3. The District Court should CERTIFY that any appeal of its disposition would not be taken in good faith.
NOTICE OF RIGHT TO OBJECT TO FINDINGS & RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Knight may object to this Findings and Recommendation within 14 days. See 28 U.S.C. § 636(b)(1).Failure to timely file written objections may bar a de novo determination by the district judge and/or waive the right to appeal.
This deadline allows a party to act within 14 days after the Findings and Recommendation is “served.” Federal Rule of Civil Procedure 6(d) allows three additional days after the period would otherwise expire.