Opinion
CV-01-1397-ST.
December 14, 2001
FINDINGS AND RECOMMENDATION
INTRODUCTION
Plaintiff, Catherine Stauffer, originally filed this action in Multnomah County Circuit Court on October 16, 2000, as Stauffer v. Oregon Citizens Alliance, et al., Case No. 00-01-10557, against defendants, Oregon Citizens Alliance Educational Foundation, Lon Mabon, Bonnie Mabon, Don Rogers, the Opal VanKommer Foundation, the United States Citizens Alliance, the Yes on 9 Committee, BJM Technical Support, and Oregon Citizens Alliance PAC, Inc. Plaintiff alleged 17 claims against defendants, all dealing with defendants' alleged refusal or fraudulent failure to pay anything to Stauffer in satisfaction of a judgment entered in 1992 in an underlying state case, Stauffer v. Oregon Citizens Alliance, et al., Multnomah County Circuit Court Case No. 9111-07218. See Notice of Removal, Complaint in Case No. 00-10-10557, attaching Judgment in Case No. 9111-07218. Plaintiff subsequently filed an Amended Complaint, deleting her Seventeenth Claim for Relief and and specifying the Oregon statutes under which her sixteen remaining claims were premised. Id. Amended Complaint in Case No. 00-10-10557.
A copy of the voluminous documents filed in the underlying state court action are attached to the Notice of Removal. However, those documents are not marked as exhibits or paginated. Thus, citations will simply be to the Notice of Removal and the title of the relevant document.
On September 20, 2001, defendants Lon Mabon and Bonnie Mabon filed a Notice of Removal to this court under 28 U.S.C. § 1441 and 1446(a), alleging federal question jurisdiction under 28 U.S.C. § 1331, supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367, and jurisdiction under a host of other federal statutes. The premise of the Notice of Removal is that removal is proper because the Mabons discovered that the state court judge has refused to disqualify himself from the case despite his alleged failure to file "a lawfully required state constitutional Oath of Office with the Oregon Secretary of State. "Notice of Removal, ¶ 6.
Plaintiffs' Motion to Remand (docket #6) is now before the court. For the reasons that follow, the motion should be granted.
ANALYSIS
The narrow issue before this court is whether this case was improvidently removed from state court. Thus, this court will not bother to summarize the protracted and contentious litigation in state court. Suffice it to say that the case had been pending in state court for some 11 months when the Mabons removed it to this court, based upon their assertion that the judge handling the case, Circuit Court Judge Pro Tem Samuel Imperati, and other judges that had ruled in the case, as well as other state court judges, had signed oaths of office which failed to incorporate the exact language of the Oregon Constitution ("impartially" and "of this state"). Circuit Court Judge Ronald E. Cinniger declined to disqualify himself on that ground, and the removal to this court followed two weeks later. Affidavit of Thane W. Tienson in Support of Plaintiff's Motion to Remand, ¶ 21.
Contrary to the Mabons' contention, the affidavit filed with the court contains Mr. Tienson's signature before a notary public.
An "action based on a claim or right that arises under federal law may be removed to federal court pursuant to 28 U.S.C. § 1441, if a notice of removal is filed within 30 days after the defendant receives `a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.'" Eyak Native Village v. Exxon Corp., 25 F.3d 773, 777 (9th Cir 1994), cert denied, 513 U.S. 1102 (1995) quoting 28 U.S.C. § 1446(b). The Mabons' removal bid is apparently premised upon their contention that, within 30 days prior to the date they filed their Notice of Removal, they received a document notifying them of Judge Cinniger's defective oath of office. Specifically, they appear to rely on a certified copy of the oath of office signed by Circuit Court Judge Ronald E. Cinniger, which the Mabons received from the Secretary of State's office on or after August 24, 2001. Notice of Removal, Certificate from the Office of the Secretary of State. The Mabons' removal bid fails for two reasons.
First, the Mabons have failed to show that the case has in fact become removable. As far as can be ascertained from the attachments to the Notice of Removal, the claims in the state court action are state law claims for fraudulent transfer under ORS 95.230(1)(a) and (b) and 95.240(1) and (2) (First through Eighth, and Tenth through Fifteenth Claims for Relief), unjust enrichment (Ninth Claim for Relief), and alter ego (Sixteenth Claim for Relief). Defendants' Answer to plaintiff's Amended Complaint raises seven affirmative defenses but does not allege any counterclaims. Notice of Removal, Answer to Plaintiff's Amended Complaint. While the Mabons "allege, in substance, that they have been deprived of substantive and procedural due process rights secured to them under the . . . Constitution of the United States of America, have been denied equal protection . . . and have been the victims of an illegal conspiracy" by or between plaintiff's attorney, the presiding judge, and other court officers (Notice of Removal, ¶ 3), the state court pleadings do not raise any claims based upon that alleged conduct, nor does it appear that the Mabons have been granted leave to so amend their pleadings. In essence, the Mabons attempt in one fell swoop to allege a civil rights claim and remove the underlying state court action based on court orders in that case. However, the pleadings in the state court case reveal only state court claims over which this court has no federal question jurisdiction, and parties from the same state over which this court has no jurisdiction based upon diversity of citizenship.
Second, assuming for the sake of argument that the Mabons truly did not "first ascertain" that Judge Ciggner's oath of office was flawed until on or after August 24, 2001, it does not appear that the notification from the Secretary of State constitutes the type of "other paper" contemplated by 28 U.S.C. § 1446(b). This court has found no Ninth Circuit authority definitively answering the question of what type of "other paper" will suffice. However, the Fifth Circuit has held that the "`other paper' must result from the voluntary act of a plaintiff which gives the defendant notice of the changed circumstances which now support federal jurisdiction." Addo v. Globe Life and Acc. Ins. Co., 230 F.3d 759, 762 (5th Cir 2000), citing SWS Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (1996). The Mabons have cited no authority for the proposition that their discovery of a potential ground for disqualification of a state court judge is a basis on which to premise removal. They clearly bear the burden of establishing federal jurisdiction. Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir 1985).
In light of this court's obligation to strictly construe the removal statute against removal, Harris v. Provident Life Acc. Ins. Co., 26 F.3d 930, 932 (9th Cir 1994), and to resolve all doubts against removal, Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir 1992), and in light of the dearth of authority permitting the removal the Mabons have attempted, this court finds that plaintiff's Motion to Remand should be granted and this case remanded back to state court.
RECOMMENDATION
For the reasons stated above, plaintiff's Motion for Remand (docket #6) should be GRANTED.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due January 10, 2002. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than January 28, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.