Paragould Arkansas, City of v. Watkins et al

Filing 77

ORDER denying 52 Motion to Reopen Case and Notice of Removal of Newly Alleged Federal Claims; denying as moot 66 Motion to Clarify; denying as moot 67 Motion for Recusal or Disqualification of Judge Billy Roy Wilson Jr.; denying as moot 72 Motion to Remand to State Court. Signed by Judge Billy Roy Wilson on 08/23/2012. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
CITY OF PARAGOULD, ARKANSAS
VS.

PLAINTIFF

3:09-CV-00172-BRW

CONNIE BURNS WATKINS and
RICHARD WATKINS

DEFENDANTS

ORDER
Pending is Plaintiff’s Motion to Reopen Case and Notice of Removal of Newly Alleged
Federal Claims (Doc. No. 52) and Defendant’s Motion to Clarify (Doc. No. 66), Motion for
Recusal or Disqualification of Judge Billy Roy Wilson, Jr. (Doc. No. 67), and Motion to Remand
(Doc. No. 72). For the reasons set forth below, Plaintiff’s Motion to Reopen Case and Notice of
Removal of Newly Alleged Federal Claims (Doc. No. 52) is DENIED. Accordingly, Plaintiff’s
motions (Doc. Nos. 66, 67, 72) are DENIED as MOOT.
I. INTRODUCTION
Plaintiff filed its initial Complaint in the Circuit Court of Green County, Arkansas
naming Connie and Richard Watkins as Defendants.1 Defendants counter-claimed -- asserting
additional causes of action under 42 U.S.C. §§ 1983, 1985, 1986, and 1988 against separate third
party defendants -- and the case was removed to the federal district court. Upon granting ThirdParty Defendants’ Motion to Strike Fifth Amended Counterclaim and Cross-Complaint, I
remanded the case back to state court for lack of subject matter jurisdiction.2 Defendants
appealed to the Eighth Circuit Court of Appeals and the appeal was dismissed.3

1

Doc. No. 52.

2

Doc. No. 27.

3

Doc. No. 48.
1

Defendants then filed a Supplement to Fourth and Fifth Amended Counterclaim in the
Green County Circuit Court.4 The Supplement alleges that Plaintiff violated federal law. Based
on the newly-added federal claims, Plaintiff filed a notice of removal and asks this Court to
reopen the case.
II. DISCUSSION
Under 28 U.S.C. § 1441(a), when a plaintiff files a complaint in state court that could
have been filed originally in federal court, the defendant may remove the action to federal court.5
“A defendant has a right to remove a case from state to federal court if the plaintiff’s cause of
action arose under federal law. A cause of action arises under federal law only when the
plaintiff’s well-pleaded complaint raises issues of federal law[.]”6 Under the well-pleaded
complaint rule, a counter-claim cannot serve as the basis for a district court’s federal question
jurisdiction.7 It follows that the right to remove a case to federal court belongs exclusively to a
defendant; neither a plaintiff, cross-defendant, nor third-party defendant may remove a case to
federal court.8

4

Doc. No. 52.

5

28 U.S.C. § 1441(a).

6

Crews v. Gen. Am. Life Ins. Co., 274 F.3d 502, 504-05 (8th Cir. 2001).

7

Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830-31 (2002).

8

See Holmes Group, Inc., 535 U.S. at 831-32; see also Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108 (1941) (holding that counter-claim defendant may not remove a suit to
federal court); Lewis v. Windsor Door Co., a Div. of Ceco Corp., 926 F.2d 729, 733 (8th Cir.
1991) (holding that a third party defendant may not remove a suit to federal court); Elkhart
Cooperative Equity Exchange v. Day, 716 F. Supp. 1384, 1387 (D. Kan. 1989) (“a third-party or
cross-claim defendant is not a defendant contemplated within the meaning of § 1441(a)” and
cannot remove a suit to federal court); Folts v. City of Richmond, 480 F. Supp. 621 (E.D. Va.
1979) (refusing to reallign parties and holding that a cross-claim defendant could not remove a
suit to federal court).
2

Here, Plaintiff/Counter-Defendant seeks to remove this case to federal court based on
Defendant’s counter-claims arising under federal law. As set forth above, Plaintiff/CounterDefendant lacks standing for removal -- the basis for removal is improper. Therefore,
Plaintiff/Counter-Defendant’s Motion to Reopen Case and Notice of Removal of Newly Alleged
Federal Claims (Doc. No. 52) is DENIED. Defendant’s Motion to Clarify (Doc. No. 66), Motion
for Recusal or Disqualification of Judge Billy Roy Wilson, Jr. (Doc. No. 67), and Motion to
Remand (Doc. No. 72) are DENIED as MOOT.
IT IS SO ORDERED this 23rd day of August, 2012.

/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

3