Shahin v. Boney et al

Filing 20

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/13/2018. (nmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NINA SHAHIN,
Plaintiff,
V.

DALE BONEY, et al.,

: Civil Action No. 17-413-LPS
: Court of Common Pleas of the State of
: Delaware in and for Kent County
: C.A. No. CPUS-14-000682

Defendants.

Nina Shahin, Dover, Delaware. Pro Se Plaintiff.
Daniel A. Griffith, Esquire, Whiteford, Taylor & Preston, L.L.C., Wilmington, Delaware. Counsel
for Dale Boney.

MEMORANDUM OPINION

March 13, 2018
Wilmington, Delaware

Plaintiff Nina Shahin ("Shahin"), who proceeds pro se, filed a formal petition for transfer of a
case she filed in the Court of Common Pleas for the State of Delaware in and for Kent County,

Shahin v. Bonry, C.A. No. CPUS-14-000682. (D.I. 1) The petition was docketed as a notice of
removal. For the reasons discussed below, the Court will summarily remand the case to the Court
of Common Pleas for the State of Delaware in and for Kent County.

I.

FACTUAL AND PROCE DU RAL BACKGROUND
Shahin filed this case in the Court of Common Pleas in September 2014 against Defendants

Dale Boney ("Boney") and State Farm Automobile Insurance Company ("State Farm"). (D.I. 1)
She alleged that Boney, a police officer for the City of Dover, issued her a citation and fabricated a
police report that caused State Farm to deny Shahin's claim for reimbursement for damages caused
to her vehicle as a result of an accident between Shahin and another driver. (See D.I. 9-1 at 2) On
April 13, 2016, the Court of Common Pleas granted Boney's motion to dismiss by reason of
immunity under the County and Municipal Tort Claims Act, 10 Del. C.

4011. Thereafter, Shahin

filed a motion for relief from judgment and requested a transfer of the matter to this Court pursuant
to 10 Del. C. § 1902. (D.I. 13-5 at 2-8) On July 19, 2016, the Court of Common Pleas denied both
the motion and the request. (See id.) The Court of Common Pleas stated that, "the plaintiffs claim
has been adjudicated and based on the face of the Complaint and the law, the Court had subject
matter jurisdiction over the plaintiffs claim. Furthermore, the plaintiff failed to follow the proper
procedure for bringing her claim in federal court." (Id. at 6)
Next, on August 19, 2016, Shahin filed a "motion 'election' for initiation of the process to
transfer the case to federal court ... under 10 Del. C. § 1902 and 42 U .S.C. § 1983." (D.I. 13-6 at 29) On January 23, 2017, the Court of Common Pleas denied Shahin's "election," noting that the
claim against Boney had been dismissed and there is no claim to transfer. (D.I. 13-7 at 2-3) In
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addition, the Court of Common Pleas explained that 10 Del. C.

1902 "only provides an avenue of

relief for the transfer of civil cases between State courts for lack of civil jurisdiction. Section 1902
does not provide for the transfer of cases to federal courts." (Id. at 3) Shahin moved for
reconsideration. (Id. at 4-8) On March 28, 2017, the Court of Common Pleas denied the motion for
reconsideration of the denial of transfer. (Id. at 9)
Shahin then filed the petition to transfer (filed as a notice of removal on April 11, 2017).

(D.I. 1) However, she continued with her filings in State court. Shahin filed a motion for
reargument on her request to join an additional party, which was denied by the State Court on July
11, 2017. (D.I. 13-8 at 1) She filed a motion for relief from judgment on July 31, 2017, which was
denied by the Court of Common Pleas on November 30, 2017. (Id. at 2-4) At that point, the Court
of Common Pleas advised Shahin that it would not consider further motions made by her in the
action and advised the only avenue left was an appeal to the Superior Court. (Id. at 4) Shahin filed a
notice of appeal to the Superior Court of the State of Delaware in and for Kent County. See Shahin
v. Bonry, C.A. No. Kl 7A-12-004 NEP. The Court takes judicial notice that the appeal is pending and
a briefing schedule was entered on January 18, 2018.
On July 27, 2017, counsel for Boney advised the Court that, "it seems that an improperly
filed letter by an aggrieved Plaintiff in a state court action was accepted as a "Notice of Removal" to
this court." (D.I. 9) The Court construes the letter as a motion to remand. Shahin responded by
filing a motion for leave of Court to file amendments to her original complaint by adding a second
defendant, City of Dover. (D.I. 11) Next, Shahin filed a motion for sanctions against defense
counsel. (D.I. 12) On December 12, 2017, Boney filed a motion to dismiss. (D.I. 13) Shahin
responded to the motion on February 12, to which Boney replied on March 9. (D.I. 17, 19) On
February 12, Shahin also filed an amended notice of transfer. (D.I. 15, 16)

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II.

LEGAL STANDARDS
The exercise of removal jurisdiction is governed by 28 U.S.C.

1441(a), which states that,

"[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State
court of which the district courts of the United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district court of the United States for the district and
division embracing the place where such action is pending." In order to remove a civil action from
state court to federal court, a district court must have original jurisdiction by either a federal
question or diversity of citizenship. See 28 U.S.C. § 1331, 1332, 1441 (a). Sections 1441(a) and 1443
both provide that the action may be removed by the defendant to the district court of the United
States. See id. at §§ 1441(a), 1446 . The removal statutes are strictly construed, and require remand to
State court if any doubt exists over whether removal was proper. See Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 104 (1941).

A court will remand a removed case "if at any time before final judgment it appears that the
district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). The party seeking removal
bears the burden to establish federal jurisdiction. See Steel VallryAuth. v. Union Switch & Signal Div.
Am. Standard, Inc., 809 F.2d 1006, 1010 (3d Cir. 1987); Zoren v. Genesis Energy, L.P., 195 F. Supp. 2d

598, 602 (D. Del. 2002). In determining whether remand based on improper removal is appropriate,
the court "must focus on the plaintiffs complaint at the time the petition for removal was filed,"
and assume all factual allegations therein are true. Steel VallryAuth., 809 F.2d at 1010. Upon a
determination that a federal court lacks subject matter jurisdiction, the District Court is obligated to
remand, sua sponte, to the State court from which it was removed. See S cott v. New York Admin. for
Children's Seroices, 678 F. App'x 56 (3d Cir. Feb. 28, 2017) .

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III.

DISCUSSION
Shahin's removal fails for a number of reasons. First, the removal statutes are construed

narrowly, and doubts about removal are resolved in favor of remand. Second, removal by a plaintiff
is not contemplated by 28 U.S.C.

1446(a). By its plain language, the removal statute limits the

rights of removal to the "defendant" or "defendants." Gross v. Deberardinis, 722 F. Supp. 2d 532, 534
(D. Del. 2010). Third, Shahin filed her petition for transfer, construed as a notice of removal, well
beyond the 30 days allowed by § 1446(6). Fourth, the Court of Common Pleas construed Shahin's
Complaint (see D.I. 19-1) as raising a civil tort action, finding no claim of a violation of federal law
pursuant to 42 U.S.C. § 1983, and gave no weight to Shahin's argument in that regard. (D.I. 9-1 at 2,
3 n.1) There is also not complete diversity among the parties and, therefore, jurisdiction does not lie
under 28 U.S.C. § 1332. Fifth, to the extent Shahin contends jurisdiction lies by reason of a federal
question (although her position has been rejected), the removal statute provides that "all
defendants" who have been properly joined and served must join in or consent to the removal of
the action. See e.g., Auld v. Auld, 553 F. App'x 807 (10 th Cir. Jan. 29, 2014) (removal defective when
removing party clearly "lacked an objectively reasonable basis for seeking removal"); A nderson v.

Toomy, L.P., 2008 WL 4838139, at *3 (D. Utah Nov. 4, 2008) (only defendant may remove to federal
court). It is unclear if both defendants even appeared in the Court of Common Pleas. Even if they
did, the record is devoid of any demonstration that they both joined in or consented to the removal.
Sixth, there is nothing left to remove. As stated succinctly by the Court of Common Pleas when
denying Shahin's numerous requests to transfer this case from the Court of Common Pleas to this
Court, "there is no claim against Boney to transfer."
The Court of Common Pleas case is not properly before this Court.

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IV.

CONCLUSION
For the above reasons, the Court will summarily remand the case to the Court of Common

Pleas of the State of Delaware in and for Kent County. All pending motions will be denied as moot.
(D.I. 11, 12, 13)

An appropriate Order will be entered.

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