Bank of New York Mellon v. Ribadeneira et al

Filing 29

ORDER - Christopher Stoller's motion for reconsideration is denied. (Doc. 27.) Stoller's motion for appointment of guardian ad litem is denied. (Doc. 28.) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 191 (a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge G Murray Snow on 8/30/2011.(KMG)

1

WO

SC

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Bank of New York Mellon,
Plaintiff,

10
11

vs.

12

Rae Ribadeneira, et al.,

13

Defendants.

)
)
)
)
)
)
)
)
)
)

No. CV 11-1433-PHX-GMS (JRI)
ORDER

14
15

Plaintiff Bank of New York Mellon commenced this action for forcible detainer in

16

Maricopa County Superior Court on July 30, 2010 against Defendants Rae Ribadeneira and

17

Doe occupants I through X, case# CV2010-94820. The address of the real property at issue

18

is 10632 East Blue Sky Road, Scottsdale, Arizona 85262 (the Property). On July 19, 2011,

19

Christopher Stoller, who is and was an inmate in the Lake County Jail in Waukegan, Illinois,

20

removed this case from state court.1 In an Order filed on August 17, 2011, the Court

21

remanded the case to state court. (Doc. 22.) Stoller has filed a motion for reconsideration

22

and a motion for appointment of a guardian ad litem. (Doc. 27, 28.) Both motions will be

23
24
1

25
26
27
28

Christopher Stoller previously commenced a case in federal court, Stoller v. Bank
of New York Mellon, No. CV11-1105-PHX-GMS, concerning the same property and issues.
Because he failed to use this District’s approved form for incarcerated persons to seek leave
to proceed in forma pauperis, the Court denied his request in that case with leave to pay the
fee or to file the approved form within 30 days. Instead, Stoller filed an interlocutory appeal,
which remains pending.

1

denied.

2

I.

Background

3

As noted above, Mellon commenced this case in state court for forcible detainer on

4

July 30, 2010 Defendants Rae Ribadeneira and Doe occupants I through X, case# CV2010-

5

94820.

6

On August 9, 2010, Stoller removed this case from state court to the District Court for

7

the District of Northern Illinois. See Bank of New York Mellon v. Ribadeneira, No.

8

CV2010-04991.2 On September 30, 2010, that court granted Mellon’s motion to remand

9

because Stoller was not a defendant, 28 U.S.C. § 1441(a), and the Northern District of
Id., Order filed Sept. 30, 2011, doc. 20.

10

Illinois was not the appropriate venue.

11

Subsequently, the Seventh Circuit Court of Appeals dismissed Stoller’s appeal. Id., No.

12

10-3295 (7th Cir. Mar. 17, 2011). On May 17, 2011, Leo Stoller (Leo), who is Christopher’s

13

brother, again removed the case to federal court in this District. See Bank of New York

14

Mellon v. Ribadeneira, No. CV11-0982-PHX-FJM. On July 8, 2011, Judge Martone

15

remanded this case back to state court based on the lack of subject matter jurisdiction. Id.,

16

doc. 27.

17

On July 19, 2011, Christopher Stoller (hereafter, Stoller), filed a document captioned

18

“Notice of Filing Notice of Removal and Answer and Pauperis Petition” removing the case

19

from state court with a “Motion for Permission to Appeal In Forma Pauperis.”3 (Doc. 1, 2.)

20
21

2

22

3

23
24
25
26
27
28

See https://ecf.ilnd.uscourts.gov/doc1/06718227863 (last visited on Aug. 10, 2011).

Lower federal courts lack jurisdiction to review state court decisions, and state court
litigants may only obtain federal review by filing for a writ of certiorari in the Supreme Court
of the United States. Mothershed v. Justices of the Supreme Court, 410 F.3d 602 (9th Cir.
2005) (citing Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923) and D.C. Court of Appeals
v. Feldman, 460 U.S. 462, 486-87 (1983)). The “Rooker-Feldman” doctrine applies “to cases
of the kind from which it acquired its name: cases brought by state-court losers complaining
of injuries caused by state-court judgments rendered before the federal district court
proceedings commenced and inviting district court review and rejection of those judgments.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see also
Mothershed, 410 F.3d at 606.
-2-

1

The next day, Stoller filed a corrected notice of removal and answer and a motion/petition

2

for criminal contempt. (Doc. 6, 7.) On July 26, 2011, Plaintiff Bank of New York Mellon

3

(Mellon) filed a motion to remand to state court. (Doc. 8.) On July 29, 2011, Stoller filed

4

a second corrected notice of removal. (Doc. 10.) On August 1, 2011, Stoller filed a motion

5

for a temporary restraining order; a motion to correct caption; and a motion to disqualify

6

counsel, to appoint a guardian ad litem, and to appoint counsel to represent him. (Doc. 12,

7

13, 15.) On August 3, 2011, Stoller filed a motion for extension of time to seek counsel and

8

to file a response to Plaintiff’s motion to remand. (Doc. 17.)

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

In its Order remanding the case to the state court, this Court stated:
A “defendant” may remove a civil action brought in state court over
which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a).
That is, a civil action that could have originally been brought in federal court
may be removed from state to federal court.4 Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). However, courts strictly construe the removal statute,
28 U.S.C. § 1441, against removal jurisdiction and federal jurisdiction “must
be rejected if there is any doubt as to the right of removal in the first instance.”
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam). In
addition, the law of the case doctrine applies to a successive removal by the
same party on the same grounds where nothing of significance has changed
since the prior removal. Midlock v. Apple Vacations West, Inc., 406 F.3d 453,
457 (7th Cir. 2005); Benson v. SI Handling Syst., Inc., 188 F.3d 780, 783 (7th
Cir. 1999) (citing Christianson v. Colt Indust. Operating Corp., 486 U.S. 800,
816-17 (1988).); see Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41,
53 (1st Cir. 2009) (after a case has once been remanded following removal, it
may not be removed again unless subsequent circumstances bring a previously
unremovable case within the removal jurisdiction of federal courts); Zufelt v.
Isuzu Motors America, L.C.C., 727 F.Supp.2d 1117, 1122 (D. N.M. 2009)
(after a case has once been remanded following removal, it may not be
removed again absent a change in circumstances brought about by voluntary
action by the plaintiff); Jordan v. Equity Group Eufaula Div., LLC, 664 F.
Supp.2d 1246 (M.D. Ala. 2009); De La Sancha v. Taco Bell of America, Inc.,
No. CV08-81325, 2008 WL 5111331, at *2 (S.D. Fla. 2008); Barahona v.
Orkin, No. CV08-04634, 2008 WL 4724054, at *2 (C.D. Cal. Oct. 21, 2008);
see also Brown v. Jevic, 575 F.3d 322, 328 (3d Cir. 2009); Johnson v. America
Online, Inc., 280 F. Supp.2d 1018, 1022 (N.D. Cal. 2003).
As noted by the Illinois District Court, Stoller is not a “defendant” in
this case. Indeed, despite the pendency of this case for more than a year, and

24
25
26
27
28

4

A federal court has original jurisdiction “of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal district
courts also have original jurisdiction of “all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs,” and is between citizens
of different States. 28 U.S.C. § 1332.
-3-

1

his previous removal of this action from state court resulting in the previous
remand, Stoller has not sought to intervene in this case. Moreover, Stoller
again removed this case following remand on the same grounds as previously
and despite the absence of any significance change. Because Stoller is not a
defendant in this action and in accordance with the doctrine of law of the case,
this case will be remanded to state court and the pending motions denied.

2
3
4
5

(Doc. 22 at 3-5.)

6

II.

Standard for Reconsideration

7

Generally, motions to reconsider are appropriate only if the Court “(1) is presented

8

with newly discovered evidence, (2) committed clear error or the initial decision was

9

manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist.

10

No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A

11

motion for reconsideration should not be used to ask a court “to rethink what the court had

12

already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel Bohannon

13

Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Rather, such arguments should be

14

directed to the court of appeals. Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp. 305, 309

15

(D. Ariz. 1992).

16

Stoller seeks reconsideration on the basis that Mellon failed to state a claim in its

17

Complaint and is not the real party in interest and asserts that he is. He also moves for a

18

determination that he has standing. He otherwise asks the Court to rethink what it has

19

already thought through. As stated above, that is not a proper basis for reconsideration.

20

Stoller fails to allege or establish that reconsideration is warranted based on newly

21

discovered evidence, clear error or a manifestly unjust decision, or an intervening change in

22

controlling law. Accordingly, Stoller’s motion for reconsideration will be denied.

23

Stoller also asks the Court to appoint a guardian ad litem. This case has been

24

remanded to Arizona state courts and is no longer before this Court. Accordingly, Stoller’s

25

motion for appointment of guardian ad litem will be denied.

26

IT IS ORDERED:

27

(1)

28

Christopher Stoller’s motion for reconsideration is denied. (Doc. 27.)
-4-

1

(2)

Stoller’s motion for appointment of guardian ad litem is denied. (Doc. 28.)

2

(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

3

§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

4

decision would not be taken in good faith.

5

DATED this 30th day of August, 2011.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-