Ritter v. Ritter

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:07-cv-01060-AW Copies to all parties and the district court/agency. [998427221] [07-1452, 07-1595, 07-1611, 07-1712]

Ritter v. Ritter

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Case: 07-1452 Document: 121

Date Filed: 09/17/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1452 E. KERFOOT RITTER, JR., Plaintiff - Appellee, v. MARTHA RITTER, Defendant - Appellant.

No. 07-1595 MARTHA RITTER, Plaintiff - Appellant, v. E. KERFOOT RITTER, JR.; THE EUGENE KERFOOT RITTER TRUST, Defendants - Appellees.

No. 07-1611 E. KERFOOT RITTER, JR., Plaintiff - Appellee, v.

Dockets.Justia.com

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MARTHA RITTER, Defendant - Appellant.

No. 07-1712 MARTHA RITTER, Plaintiff - Appellant, v. THE EUGENE KERFOOT RITTER TRUST; F. Trustee; LUCILLE RITTER, Co-Trustee ARNOLD LERMAN; E. KERFOOT RITTER, JR., Defendants - Appellees. GILBERT HARMAN, Co(deceased 1/28/04);

Appeals from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge; Roger W. Titus, District Judge; Peter J. Messitte, Senior District Judge. (8:07-cv-01060-AW; 8:06-cv-02665-RWT; 8:07-cv00539-PJM) Submitted: August 30, 2010 Decided: September 17, 2010

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. No. 07-1452 dismissed; No. 07-1595 affirmed as modified; No. 071611 vacated; No. 07-1712 affirmed by unpublished per curiam opinion. Martha Ritter, Appellant Pro Se. Alan Stuart Feld, BULMAN, DUNIE, BURKE & FELD, CHTD, Bethesda, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2

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PER CURIAM: Martha Ritter filed three notices of removal in the

district court.

In two of the removal notices, she removed a

state court action (the 1996 action) that she initiated in 1996 in the Circuit Court for Montgomery County, Maryland. In the

third removal notice, she removed a second state court action (the 1993 action) originally filed in the Circuit Court for

Montgomery County.

The second action commenced in 1993 when

Martha's brother, Kerfoot, filed a complaint for an emergency restraining order against Martha. * The district court remanded

the removed actions to the state court. Martha now appeals from four orders entered by the district court. been consolidated. The appeals have

Nos. 07-1452; 07-1611 In No. 07-1452, Martha appeals the district court's orders remanding the 1993 action, which she had removed, to the state court and denying her Fed. R. Civ. P. 59(e) motion for

reconsideration.

The court's remand order was based in part on

the court's determination that the complaint did not "sustain federal jurisdiction under any jurisdictional theory." The state court docket number assigned to the 1993 actions was 110498. The docket number assigned to the 1996 action was 153962. 3
*

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Subject to an exception not applicable here, remand orders are generally "not reviewable on appeal or otherwise." 28

U.S.C. § 1447(d) (2006).

Because "§ 1447(d) must be read in

pari materia with § 1447(c), . . . only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d)." Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995). "A remand order based on a lack of subject matter jurisdiction, whether sua sponte or not, falls within the scope of § 1447(c), and is therefore not reviewable by a court of appeals."

Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). Because the district court's sua sponte remand

was based in part on lack of subject matter jurisdiction, we dismiss No. 07-1452. In addition to its orders remanding the removed action and denying Rule 59(e) relief, the district court entered an order imposing a prefiling injunction. from this order. In its order, the district court erroneously stated that Martha had removed the 1996 action on three occasions. In fact, In No. 07-1611, Martha appeals

Martha removed that action twice and removed the 1993 action once. In light of this factual error, we conclude that the

district court abused its discretion in issuing the prefiling injunction, and we vacate the district court's order.

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No. 07-1595 This appeal involves Martha's removal of the 1996 action. The district court sua sponte remanded the matter to state court because "the right of removal is not accorded to a plaintiff." Martha filed a Fed. R. Civ. P. 59(e) motion for reconsideration, which the district court denied. She now appeals the orders

remanding the case and denying her Rule 59(e) motion. We have jurisdiction to review the propriety of the district court's remand on procedural grounds because the court did not grant a motion to remand, but instead issued its order sua sponte. "[E]very appellate court has a special obligation to

satisfy itself not only of its own jurisdiction, but also that of the courts in a cause under review." Bender v. Williamsport

Area Sch. Dist., 475 U.S. 534, 541 (1986) (internal quotation marks omitted). "`[I]f the record discloses that the lower

court was without jurisdiction [the appellate] court will notice the defect.'" Id. (quoting United States v. Corrick, 298 U.S.

435, 440 (1936)). Questions of subject matter jurisdiction may be raised sua sponte by the court. Id. If the appellate court

concludes that the district court was without subject matter jurisdiction, the action must be dismissed. Interstate

Petroleum Corp. v. Morgan, 249 F.3d 215, 219 (4th Cir. 2001). The district court lacked subject matter jurisdiction over the removed action. That action presented no federal question. 5

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Further,

complete

diversity

was

lacking.

In

the

notice

of

removal, Martha identified herself as the Plaintiff and Kerfoot and the Eugene Kerfoot Ritter Trust as the Defendants. Two

Trustees of the Trust identified by Martha in the removal notice were citizens of Maryland. Therefore, complete diversity was

lacking, for Martha also is a Maryland citizen. We accordingly affirm as modified. The district court's

order of remand is modified to reflect that the remand is based on want of subject matter jurisdiction.

No. 07-1712 The notice of removal in this case pertained to the 1996 action. court Kerfoot filed a motion for remand, which the district granted upon the determination that Martha was "the

Plaintiff in the underlying state court action."

In its order,

the court also granted Kerfoot's motion for attorney's fees, awarding him $500. for Martha filed a Fed. R. Civ. P. 60(b) motion which the district court denied. She

reconsideration,

appeals the district court's denial of that motion.

We conclude

that Martha did not establish entitlement to relief under Rule 60(b), and that the district court accordingly did not abuse its discretion in denying the motion. 116 F.3d 91, 94 (4th Cir. 1997). See Heyman v. M.L. Mktg. Co., We therefore affirm.

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Conclusion We dismiss No. 07-1452, affirm No. 07-1595 as modified, vacate the order in No. 07-1611, and affirm No. 07-1712. motions dispense for sanctions oral and reconsideration because the are denied. and The We legal

with

argument

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

No. 07-1452 DISMISSED No. 07-1595 AFFIRMED AS MODIFIED No. 07-1611 VACATED No. 07-1712 AFFIRMED

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