Opinion
Case No. 1:08-cv-140.
February 29, 2008
Opinion and Order Remanding the Case to State Court due to Lack of Subject-Matter Jurisdiction
In January 2008, Jason M. Malik and Lisa L. Malik ("Malik"), proceeding pro se (without an attorney), filed an action in Michigan state court against three defendants: AT T Mobility, LLC ("AT T"); Sprint Communications Company, LP ("Sprint"); and CIT Financial USA, Inc. ("CIT"). On Friday, February 8, 2008, defendant AT T filed a notice purporting to remove the case to this court.
On Friday, February 15, 2008, defendant AT T filed a stipulation of dismissal as to itself only. That same day, the Clerk's Office docketed a notice that it had received from Malik the day before. In the notice, Malik states,
Please take notice that Defendant AT T Mobility, LLC has been dismissed from the State Court Action 2008-GC-00001 that was pending in the 61st District Court. Plaintiffs and in house counsel for AT T Mobility, LLC, Ms. Marian Taylor[,] were in settlement discussions and settled the pending claims in that case. Mr. Malik assured Ms. Taylor [that] a Motion to Dismiss with Prejudice would be filed. This Motion to Dismiss AT T Mobility, LLC was filed [in state court] on February 06, 2008 [and] was subsequently granted on February 11, 2008. ( See Exhibit "A").
Being as the subsequent [sic] state case was Dismissed With Prejudice as to Defendant AT T before it was removed to this Honorable Court on February 12, 2008[,] Defendant AT T had no authority on which to remove the case to this Honorable Court. * * *
Pls.' Feb. 14, 2008 Notice at 1-2.
Malik is correct: because defendant AT T was dismissed with prejudice from the state-court action by order of Michigan District Judge Patrick C. Bowler dated Monday, February 11, 2008, AT T had no right or authority to remove the case to this court several days later. And no other defendant has filed a notice of removal.
The Maliks state that they do not object to this case being heard in federal court. See Pls.' Feb. 14, 2008 Notice at 2. Only defendants, however, are authorized to remove a case from state court to federal court, not plaintiffs. See Cook v. Lankford, 17 F. App'x 351, 352 (6th Cir. 2001) (noting with approval, "the district court remanded this proceeding to [state court] pursuant to 28 U.S.C. § 1447(c), on the ground that a plaintiff has no right to remove a civil action from state court to federal district court."); Russell v. Caruso, No. 1:07-cv-662, 2007 WL 3232126, *2 (W.D. Mich. Oct. 30, 2007) (Maloney, J.) (citing, inter alia, Hakim-El DTE Energy, No. 07-cv-13659, 2007 WL 2541772, *1 (E.D. Mich. Aug. 31, 2007) and McCane v. McCane, 47 F. Supp.2d 848, 851 (E.D. Mich. 1999)).
See also Trostle v. Avery, No. 1:06-cv-44, 2006 WL 374250, *1 (W.D. Mich. Feb. 17, 2006) (Quist, J.) (citing Chicago, R.I. P.R. Co. v. Stude, 346 U.S. 574, 579-80 (1954) and 14 C Wright, Miller Cooper, FED. PRAC. PROC. § 3731 (3d ed. 1998)).
The United States Supreme Court has recognized a "very limited set of circumstances" wherein a party that is listed as a plaintiff may, in fact, be a "functional defendant" for purposes of the removal statute. Chancellor's Learning Sys., Inc. v McCutchen, No. 1:07-cv-1623, 2008 WL 269535, *2 (N.D. Ohio Jan. 29, 2008) (citing Mason City Fort Dodge R.R. Co. v. Boyton, 204 U.S. 570 (1907)). "Under the functional test, the court may re-align the parties if" a defendant has asserted a counterclaim against the plaintiff and "the counterclaim is the `mainspring' of the action." Chancellor's Learning Sys., 2008 WL 269535 at *3 (discussing Allstate Ins. Co. v. Blankenship, No. Civ-A-7-05-194, 2005 WL 2095769 (E.D. Ky. Aug. 30, 2005)). In the instant case, there is no counterclaim against the Maliks, so they cannot be "functional" defendants who might be entitled to remove.
Consequently, no party has effected a valid removal of the case, and the Maliks are not eligible to seek removal. Therefore, this court lacks removal jurisdiction over the case.
Cf. Alonzo v. Dairy Queen of Corpus Christi, Inc., No. 94-60789, 66 F.3d 320, 1995 WL 534759 (5th Cir. July 26, 1995), a procedurally confusing case which makes a somewhat similar point. In Alonzo, the plaintiff brought suit in state court, claiming that a particular Dairy Queen restaurant had violated the Americans with Disabilities Act. The plaintiff named as defendants American Dairy Queen, Inc. ("ADQ") and Dairy Queen fo Corpus Christi, Inc. ("DQCC"), whom the plaintiff believed were the franchisor and franchisee-operator of that restaurant. Id. at *1.
Upon learning that the restaurant had been sold, the plaintiff filed an amended complaint. The amended complaint still named franchisor ADQ, but it dropped former franchisee-operator DQCC and added new franchisee-operator Bayside. Id. ADQ then removed to federal court. Id.
The plaintiff reached a settlement with the new franchisee-operator, Bayside, wherein Bayside agreed to make all the alterations to the premises desired by the plaintiff. Franchisor ADQ was not a party to the settlement, so it remained in the suit as a defendant. ADQ moved to dismiss for failure to state a claim on which relief can be granted. The district court granted ADQ's motion on two grounds: (1) the plaintiff had obtained all the relief it had sought and (2) as a matter of law, ADQ was not liable for the franchisee-operator's alleged noncompliance with the ADA. Id.
The plaintiff appealed, and a Fifth Circuit panel determined that the district court had not erred in granting ADQ's motion to dismiss and dismissed the appeal as frivolous. The panel explained,
When [franchisor] ADQ removed the case to federal court, it was under the impression that [its franchisee] DQCC was a named defendant. Shortly after removal, ADQ advised the court that it had not been served with the first amended complaint [in state court] naming Bayside instead of DQCC.
* * *
DQCC was no longer a party in the state suit at the time of removal. With the exception of the brief period immediately following removal when ADQ was under the impression that DQCC was a defendant, no party treated DQCC as a defendant in federal court, and it did not appear in federal court. The district court did not treat it as a party, either. ADQ's initial misimpression, resulting from its not having been served with the first amended complaint, merely created an anomaly in this case.
There is no error [in the district court's dismissal of defendant ADQ]. . . .Id. at *2.
ORDER
Accordingly, THIS CASE IS REMANDED to the State of Michigan's 61st District Court.This is a final order, but it is not appealable. See 28 U.S.C. § 1447(d) ("An order remanding the case from the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 [civil rights actions] of this title shall be reviewable by appeal or otherwise."); see also Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 518 (6th Cir. 2001) ("`As long as a district court's remand is based on a timely raised defect in removal procedure or on a lack of subject-matter jurisdiction . . . a court of appeals lacks jurisdiction to entertain an appeal of the remand order under 28 U.S.C. § 1447(d).'") (quoting Things Remembered v. Petrarca, 516 U.S. 124, 127-28 (1995) (discussing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976) and 28 U.S.C. § 1447(c)).