Hamilton et al v. Poenisch et al

Filing 5

ORDER re: 3 Notice (Other) filed by Terry D. Hamilton, Chem-Away, Inc. The Notice of Removal [of] Action Under 28 U.S.C. Section 1446(b), is STRICKEN from the record in this case. by Chief Judge Wiley Y. Daniel on 11/4/2010. (erv2, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel Civil Action No. 10-cv-02481-WYD-MJW TERRY D. HAMILTON, an individual; and CHEM-AWAY, INC., a Colorado Corporation, Plaintiffs, v. WALTER POENISCH, a/k/a James "Jim" Poenisch, an individual; SUZANNE CONRY, an individual; CHEYENNE, WY DEVELOPMENT CORPORATION, a Wyoming Corporation; EUGENE H. BARKER, an individual; BERNARD C. MAYNES, an individual; B&B 2ND MORTGAGE, LLC, a Colorado Limited Liability Company; B&B VENTURES, LLC, a Colorado Limited Liability Company; HIGH POINTE, LLC, a Colorado Limited Liability Company; THOMAS W. METCALF, an individual; THOMAS W. METCALF, ATTORNEY AT LAW, a professional law firm; GARY L. BUTLER, an individual; and CENTENNIAL BANK OF THE WEST, a/k/a GUARANTY BANK AND TRUST COMPANY, a Colorado Corporation, Defendants. ORDER The Notice of Removal [of] Action Under 28 U.S.C. Section 1446(b) (ECF No. 3) is STRICKEN from the record in this case. This filing is improper for numerous reasons under both federal law and the rules of this Court. Among the many problems1 with this filing is the fact that 28 U.S.C. § 1446 does not provide a procedure for removal of a state action by a plaintiff.
While Plaintiffs' filing is improper for numerous reasons, in the interest of judicial economy, I decline to address all of the problems and merely highlight a few in this Order.
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Moreover, § 1446 provides that the Notice of Removal "shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, . . . whichever period is shorter." 28 U.S.C. § 1446. Here, Plaintiffs are attempting to "remove" a state court action from 2001 into a separate federal action. This is clearly improper and will not be considered by the Court. Dated: November 4, 2010 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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