Opinion
Civil Action No. 02-2139-CM
June 26, 2002
MEMORANDUM AND ORDER
Plaintiff filed the instant action for recovery of possession of real property in the District Court of Johnson County, Kansas. Thereafter, plaintiff removed the case to this federal court. This matter is before the court on Defendant Jamie Saunders's Motion to Remand (Doc. 9). Plaintiff has failed to respond to defendant's motion to remand. Accordingly, the court considers and decides defendant's motion as uncontested.
In addition, the court grants defendant's motion on the merits. Only a "defendant" may remove an action from state court if original jurisdiction exists in a federal district court. 28 U.S.C. § 1441. Thus, a plaintiff is not entitled to remove an action, even where there has been a counterclaim filed by the defendant. Green Tree Fin. Corp. v. Arndt, 72 F. Supp.2d 1278, 1281 (D.Kan. 1999) (citing Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941)). In this case, plaintiff removed this action to federal court. Plaintiff was not entitled to do so and, accordingly, the court determines that remand is proper.
The court also notes that there appears from the face of plaintiff's state court petition no basis upon which to confer federal jurisdiction.
Defendant also has requested costs and attorneys' fees for filing the instant motion. Because plaintiff appears pro se in this matter, the court declines to award costs and fees in these circumstances. IT IS THEREFORE ORDERED that Defendant Jamie Saunders's Motion to Remand (Doc. 9) is granted. This case is hereby remanded to state court. Defendant's request for costs and attorneys' fees is denied.