Whitnum v. Darien et al
Filing
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ORDER denying 35 MOTION to Reopen due to lack of subject matter jurisdiction; denying as moot 36 MOTION for Adjudication, 37 MOTION for Order, and 39 MOTION for Reconsideration. Signed by Judge Stefan R. Underhill on 06/20/2017. (Jamieson, K)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
L. LEE WHITNUM,
Plaintiff,
No. 3:16-cv-01826 (SRU)
v.
TOWN OF DARIEN, et al.,
Defendants.
RULING AND ORDER
L. Lee Whitnum, pro se, has filed a series of motions aimed at reversing my ruling and
order dated December 9, 2016. In that ruling, I held that removal of this case was improper due
to lack of subject matter jurisdiction, and I ordered the case remanded to Connecticut Superior
Court. Doc. No. 33. Because remand already has been effected, I lack jurisdiction to reconsider
my earlier ruling, and I deny Whitnum’s motion for lack of subject matter jurisdiction.
I.
Standard of Review
Federal Rule of Civil Procedure 60(b) provides that the district court may
relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
have been discovered in time to move for a new trial under Rule
59(b)
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
The standard for granting motions for reconsideration is strict. Motions for
reconsideration “will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., 70 F.3d 255, 257
(2d Cir. 1995). Motions for reconsideration will not be granted where the party merely seeks to
relitigate an issue that has already been decided. Id. The three major grounds for granting a
motion for reconsideration in the Second Circuit are: (1) an intervening change of controlling
law, (2) the availability of new evidence, or (3) the need to correct a clear error or prevent
manifest injustice. Virgin Atl. Airways v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (citing 18 Charles A. Wright et al., Federal Practice & Procedure § 4478).
II.
Background
L. Lee Whitnum initiated a suit in Connecticut Superior Court on September 4, 2014, in
which she alleged state tort claims against the Town of Darien. Compl., Doc. No. 1-1. On
November 7, 2016, the Town removed Whitnum’s Second Amended Complaint to this court,
arguing that I had subject matter jurisdiction because one of Whitnum’s claims arose under a
federal statute, 28 U.S.C. § 1983. See Doc. No. 1, at 2. Whitnum responded that she “ha[d] no
causes of action that entailed any violation of federal law,” and asked that I “[o]rder transfer of
this case back to the [state] court.” Reply Obj. Mot. Bifurcate, Doc. No. 25, at 1 (emphasis
removed); Mot. Remand, Doc. No. 31, at 1.
After examining the complaint, I agreed that Whitnum’s claims did not “arise[] under
federal law.” See Ruling & Order, Doc. No. 33, at 4 (quoting Metro. Life Ins. Co. v. Taylor, 481
U.S. 58, 63 (1987)). Although Whitnum’s allegations of malicious prosecution and false arrest
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certainly could be “cognizable under [section] 1983,” Whitnum had chosen “to avoid federal
jurisdiction by pleading only state claims even where a federal claim [was] also available.” Id. at
3–4 (quoting Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995); Romano v. Kazacos, 609 F.3d
512, 518 (2d Cir. 2010) (internal quotation marks omitted)). Because none of Whitnum’s claims
was “based on federal law,” and “no other basis exist[ed] for the exercise of federal jurisdiction,”
I ordered that Whitnum’s case be remanded to Connecticut Superior Court. See Ruling & Order,
Doc. No. 33, at 4–5 (quoting Romano, 609 F.3d at 518 (internal quotation marks omitted)). The
Clerk effected remand to state court on December 27, 2016. Doc. No. 34.
After the case was remanded, on March 7, 2017, the Superior Court issued an order
striking Whitnum’s claim for loss of consortium. See Doc. No. 240.01, Whitnum v. Town of
Darien, No. FST-CV14-5015302-S (Conn. Super. Ct. Mar. 7, 2017). Whitnum attempted to
revive the claim by joining her former husband, the late James J. Baker, as co-plaintiff. See Doc.
No. 251.00, id. (Feb. 21, 2017). The Superior Court sustained the defendants’ objection to
joining Baker on April 24, 2017. See Doc. No. 258.01, id. (Apr. 24, 2017).
Whitnum then filed a new complaint on May 3, 2017, in which she added a federal
section 1983 claim for “violations of constitutional rights by state officials.” See Doc. No.
297.00, id. (May 3, 2017) The same day, Whitnum gave notice of her intent to remove the case
back to U.S. District Court. Doc. No. 298.55, id. (May 3, 2017). On May 5, 2017, she filed a
motion in this court to reopen her federal case, which effectively constitutes a motion for
reconsideration of my earlier ruling remanding the case.1 See Doc. No. 35, Whitnum v. Town of
Darien, No. 3:16-cv-01826 (SRU) (D. Conn. May 5, 2017).
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Whitnum also filed a motion for adjudication on May 5, 2017, Doc. No. 36, a motion for order
on May 15, 2017, Doc. No. 37, and a substituted complaint on May 15, 2017, Doc. No. 38, in
which she seeks further relief related to her case. In addition, on May 19, 2017, Whitnum—
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III.
Discussion
Whitnum moves for reconsideration pursuant to Rule 60(b)(6), contending that “other
reason[s] . . . justif[y] relief” from my earlier order because she “cannot get justice . . . in the
Superior Court.” See Mot. Reconsid., Doc. No. 35, at 3. Because “[e]ntry of an order of remand
and mailing a certified copy to the State Court . . . completely divests the federal court of
jurisdiction,” however, I cannot consider Whitnum’s motion and must deny it for lack of
jurisdiction. See Rosenberg v. GWV Travel, 480 F. Supp. 95, 97 n.3 (S.D.N.Y. 1979).
Section 1447(d) of the federal removal statute provides in pertinent part that “[a]n order
remanding a case to the State court from which it was removed is not reviewable on appeal or
otherwise.” 28 U.S.C. § 1447(d). “Although section 1447(d) could be read expansively to apply
to all remand orders,” the Supreme Court has construed the provision to “prohibit[] review only
of those remand orders based on the grounds specified in section 1447(c).” Price v. J&H Marsh
& McLennan, 493 F.3d 55, 59 (2d Cir. 2007) (Newman, J.) (citing Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 711–12 (1996)). Among other grounds set forth in section 1447(c), a district
court must order remand if it “determine[s] that [it] lack[s] subject matter jurisdiction.” See id.
Such remand may occur at any time, for without subject matter jurisdiction—as determined ‘by
looking to the complaint as it existed at the time the petition for removal was filed,” Moscovitch
v. Danbury Hosp., 25 F. Supp. 2d 74, 79 (D. Conn. 1998) (Droney, J.)—the case was never
susceptible to being removed at all. See Ruling & Order, Doc. No. 33, at 1.
As the Second Circuit has held, section 1447(d)’s prohibition of review “on ‘appeal or
otherwise’ . . . preclude[s] not only appellate review but also reconsideration by the district
court.” Shapiro v. Logistec USA, 412 F.3d 307, 311 (2d Cir. 2005) (quoting Seedman v. U.S.
alleging that “there is bias at play”—filed another motion for reconsideration of my order
denying her motion to transfer the case to U.S. District Judge Victor A. Bolden. See Doc. No. 39.
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District Court, 837 F.2d 413, 414 (9th Cir. 1988) (per curiam)); accord Three J Farms v. Alton
Box Board Co., 609 F.2d 112, 115 (4th Cir. 1979) (Section 1447(d) “not only forecloses
appellate review, but also bars reconsideration of such an order by the district court.”).
Reconsideration is barred “out of respect for the state court and in recognition of principles of
comity.” Three J Farms, 609 F.2d at 115 (quoting In re La Providencia Dev. Corp., 406 F.2d
251, 252 (1st Cir. 1969)). Federal circuits have observed that district courts should “interfere[]
with” state proceedings through removal “once, at most,” and that “[t]he action must not ricochet
back and forth depending upon the most recent determination of a federal court.” Id. (quoting In
re La Providencia Dev. Corp., 406 F.2d at 252). Thus, “once a section 1447(c) remand order has
been mailed to the state court . . . , federal jurisdiction is at an end,” and the district court “has no
power to retrieve” the remanded case. Shapiro, 412 F.3d at 312; Seedman, 837 F.2d at 414.
In short, I may reconsider my earlier ruling only if (a) the remand order did not arise
under section 1447(c), or (b) the order has not been “mailed to the state court.” See Shapiro, 412
F.3d at 312. “It is a question of law whether the district court based its remand order on a section
1447(c) ground,” a question that should be “address[ed] . . . by looking to the grounds upon
which the court purported to base its decision.” Id. at 310. In the ruling of December 9, 2016, I
held that removal was improper and remand was required because Whitnum’s claims did not
“arise[] under federal law,” and “no other basis exist[ed] for the exercise of federal jurisdiction.”
See Ruling & Order, Doc. No. 33, at 4–5. Section 1447(c) provides for remand if the district
court “determin[es] that [it] lack[s] subject matter jurisdiction.” Price, 493 F.3d at 59. Hence, my
remand order clearly fell within the ambit of section 1447(c). See Myers v. Sara Lee Corp., 2009
WL 1373578, at *1 (E.D.N.Y. May 15, 2009) (“[S]ection 1447(d) bars district courts from
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reconsidering orders remanding cases on grounds of lack of federal subject matter jurisdiction.”
(internal quotation marks omitted)).
In addition, the Clerk long since “certifie[d] [the] remand order to state court.” See
Seedman, 837 F.2d at 414. The docket reflects that the Clerk provided notice of remand to the
Superior Court on December 27, 2016. Doc. No. 34. Proceedings have been ongoing in state
court since January 4, 2017. See Mot. Strike, Doc. No. 240.00, Whitnum v. Town of Darien, No.
FST-CV14-5015302-S (Conn. Super. Ct. Jan. 4, 2017). In the months since the case was
remanded, the Superior Court appears to have held several hearings and issued a multiple of
orders. See, e.g., Doc. No. 240.01, id. (Mar. 7, 2017); Doc. No. 252.01, id. (Apr. 10, 2017); Doc.
No. 252.02, id. (Apr. 10, 2017); Doc. No. 253.01, id. (Apr. 10, 2017); Doc. No. 258.01, id. (Apr.
24, 2017). Were I now to belatedly retrieve Whitnum’s case, the litigation would indeed
“ricochet back . . . depending upon the most determination of [this] court”—precisely the
situation that multiple circuits have cautioned that I should avoid. See Three J Farms, 609 F.2d
at 115 (In re La Providencia Dev. Corp., 406 F.2d at 252).
Therefore, I conclude that my remand order was issued pursuant to section 1447(c), and
that the order already has been “mailed to the state court.” See Shapiro, 412 F.3d at 312. As a
result, I am “divested of jurisdiction and can take no further action on the case.” Seedman, 837
F.2d at 414. I cannot decide Whitnum’s motion for reconsideration on the merits, but instead
must deny the motion for lack of subject matter jurisdiction.
I note that Whitnum’s motion also could be construed as a second notice of removal. See
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006) (pro se submissions
should be “construed liberally and interpreted so as to raise the strongest arguments that they
suggest” (internal quotation marks and brackets omitted)). But “the right of removal is vested
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exclusively in defendants,” and “[a] plaintiff simply may not remove an action from a state
court.” Geiger v. Arctco Enters., 910 F. Supp. 130, 131 (S.D.N.Y. 1996); accord Martocchio v.
Savoir, 2009 WL 3248673, at *1 (D. Conn. Oct. 7, 2009) (“A plaintiff . . . is not allowed to
remove a state court action to federal court. Only a defendant can remove.”). Although Whitnum
could originally have filed a section 1983 claim in federal court, once she “file[d] [her] case in
state court, only [the] defendant[s] [could] remove the action to federal court.” Deutsche Bank
Nat’l Tr. Co. v. Doe, 2010 WL 4683923, at *2 (D. Conn. Nov. 4, 2010) (emphasis removed)
(citing, e.g., Franklin Nat’l Bank Sec. Litig. v. Andersen, 532 F.2d 842, 846 (2d Cir. 1976);
Adams v. Adminastar Defense Servs., 901 F. Supp. 78, 79 (D. Conn. 1995)). Whitnum, as “the
plaintiff[] in the state-court case, . . . lack[s] the authority to remove the action,” and remand still
would be required even were I to consider her motion to be a notice of removal. See Murray v.
Hy Cite Corp./Royal Prestige, 150 F. Supp. 2d 527, 529 (E.D.N.Y. 2001).
IV.
Conclusion
I deny Whitnum’s motion to reopen, Doc. No. 35, due to lack of subject matter
jurisdiction. I also deny as moot her motion for adjudication, Doc. No. 36; her motion for order,
Doc. No. 37; and her motion for reconsideration, Doc. No. 39.
The Clerk shall send a copy of this ruling to Connecticut Superior Court, Judicial District
of Fairfield at Bridgeport.
So ordered.
Dated at Bridgeport, Connecticut, this 20th day of June 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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