High Pointe, L.L.C. v. Hamilton et al
Filing
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ORDER Remanding Case by Chief Judge Marcia S. Krieger on 2/14/2013. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 13-cv-00351-MSK
HIGH POINTE, LLC,
Plaintiff,
v.
TERRY D. HAMILTON,
CHEMAWAY, INC., and
DAVID HAMILTON,
Defendants, and
CHEYENNE WY DEVELOPMENT CORPORATION,
Intervenor Defendant.
ORDER REMANDING CASE
THIS MATTER comes before the Court sua sponte.
The procedural history of this action is somewhat murky. The Plaintiff commenced this
action on or about September 29, 2005, in the Colorado District Court for Weld County, seeking
to quiet title in three parcels of real property in Weld County in favor of the Plaintiff, and naming
Defendants Terry Hamilton and Chemaway as the only other known parties claiming an interest
in the property. It appears that on or about March 3, 2011, the state court quieted title in the
property in favor of the Plaintiff, possibly as the result of the Plaintiff having reached a
settlement with the then-named Defendants (including the Intervenor Defendant). That state
court order, or perhaps the entire case, may be the subject of a current appeal to the Colorado
Court of Appeals.
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On or about January 11, 2013, Defendant David Hamilton, claiming that the state court
never properly afforded notice of the action to interested non-parties, filed a purported pro se
“Answer” in the state court. On January 25, 2013, the state court struck David Hamilton’s
answer, stating that he “is not a party to this case,” and that in any event, the state court “does not
have jurisdiction in this case as it is . . . currently on appeal.”
David Hamilton then filed the instant Notice of Removal (# 1), contending that this Court
has subject-matter jurisdiction over the matter pursuant to 28 U.S.C. § 1331—that is, federal
question jurisdiction. Mr. Hamilton apparently contends that a federal question is presented in
two ways: (i) that “the laws of the United States . . . require service of legal process upon all
unknown persons who claim an interest” in the property at issue; and (ii) that the Plaintiff (or
perhaps the state court) has deprived him of the protections against deprivation of property
without due process, as provided by the Fifth and Fourteenth Amendments to the U.S.
Constitution
It appears that Mr. Hamilton is proceeding pro se. Accordingly, the Court construes his
pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal
construction is intended merely to overlook technical formatting errors and other defects in the
Mr. Hamilton’s use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). Pro se status does not relieve Mr. Hamilton of the duty to comply with
the various rules and procedures governing litigants and counsel or the requirements of the
substantive law, and in these regards, the Court will treat him according to the same standard as
counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106,
113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
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The party invoking federal jurisdiction, here, Mr. Hamilton, bears the burden of proving
such jurisdiction exists. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1289-90 (10th Cir.
2001). The Court finds that Mr. Hamilton’s allegations of federal subject-matter jurisdiction are
defective for a variety of reasons.
To permit removal of a case on federal question grounds, the federal question must
appear on the face of the well-pleaded Complaint; an anticipated or actual defense that invokes a
federal question does not permit removal. Jefferson County v. Acker, 527 U.S. 423, 430-31
(1999). Here, the face of the state court Complaint reveals a garden-variety quiet title action
under state law. The “federal questions” Mr. Hamilton asserts – which essentially contend that
he was denied Due Process by not having been served in the case -- are essentially affirmative
defenses he might assert to a contention that he is bound by the state court’s order quieting title
in the Plaintiff. Thus, even assuming that Mr. Hamilton’s allegations of due process violations
are viable (and this Court makes no such finding), those allegations are defensive in nature and
thus do not create federal subject matter jurisdiction sufficient to support removal.
In addition, Mr. Hamilton’s purported removal fails for several additional reasons. The
state court has stricken his purported Answer and, by all appearances, he is not currently a party
to this action. Although Mr. Hamilton might very much wish to be heard on the matter, until he
is officially made a party by an order of the state court, he lacks standing to file a Notice of
Removal. See 28 U.S.C. § 1441(a) (removal must be “by the defendant or defendants” in an
action). Moreover, all parties named as Defendants must join in a removal, 28 U.S.C. §
1446(b)(2)(A), and Mr. Hamilton has not represented that the other named Defendants in the
case consent to his removal of the action.
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For the foregoing reasons, the Court finds that it lacks subject-matter jurisdiction over
this action, and thus, REMANDS the action to the Colorado District Court for Weld County
pursuant to 28 U.S.C. § 1447(c). The Clerk of the Court shall transmit the entire case file in this
case to the Clerk of the Colorado District Court for Weld County and shall thereafter close this
case.
Dated this 14th day of February, 2013.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
.
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