Selig-Paed v. Thomson

Filing 9

ORDER OF DISMISSAL WITH PREJUDICE. This matter is dismiised for lack of jurisdiction. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KAREN SELIG-PAED,
Case No. 4:11-cv-0076-BLW
Plaintiff,
ORDER OF DISMISSAL WITH
PREJUDICE

v.

TRACY W. THOMSON,
Defendant.

Plaintiff filed a Petition for Removal (Dkt. 2) on February 25, 2011, seeking to
remove a matter (Case No. 054701661 DA) from the Judicial District Court of Utah,
Davis, County, to this Court. It appears from the petition that Plaintiff is attempting to
remove a divorce and child custody action pending in Utah state court to this federal
district court. As more fully expressed below, the Court will dismiss the matter for lack
of jurisdiction.
A United States district court must examine petitions or notices seeking removal to
confirm that federal jurisdiction is proper. 28 U.S.C. § 1446(c)(4); Sparta Surgical Corp.
v. Nat'l Ass'n. Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998). Whether
subject matter jurisdiction exists is a question of law. Nike, Inc. v. Comercial Iberica de
Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir. 1994). And removal jurisdiction is
statutory, and strictly construed. Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769,
ORDER - 1

774 (9th Cir. 1986). If there is any doubt as to the right of removal, jurisdiction must be
rejected. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996).
DISCUSSION
Plaintiff’s Petition for Removal suffers from numerous procedural and substantive
deficiencies, and under the most liberal construction, fails to state a cognizable claim
for relief under federal court jurisdiction. As a matter of procedure, removal is generally
available to defendants only. 28 U.S.C. 1441(a); see Columbia Gas & Elec. Corp. v.
American Fuel & Power Co., 322 U.S. 379, 383-84 (1944). Also, a civil action brought in
state court, but for which the federal district court has original jurisdiction may be
removed “to the district court of the United States for the district and division embracing
the place where such action is pending.” 28 U.S.C. § 1441. In this case, the appropriate
court would be the United States district court for the District of Utah.
As to the substance of Plaintiff’s petition, removal is inappropriate. Family law
matters are within the exclusive jurisdiction of the state courts. See Ankenbrandt v.
Richards, 504 U.S. 689, 112 S. Ct. 2206 (1992) (the United States Supreme Court has
recognized a "domestic relations exception" to federal jurisdiction, which means that
federal courts may not hear divorce, alimony, or child custody cases); Buechold v. Ortiz,
401 F.2d 371, 372 (9th Cir. 1968). It appears from Plaintiff’s petition that her case
concerns modification of child support and/or custody from a divorce decree, which are
squarely within the jurisdiction of state and not federal court.
For these reasons, the Court will reject Plaintiff’s Petition for Removal.
ORDER - 2

ORDER
IT IS ORDERED that this matter be DISMISSED for lack of jurisdiction. A
separate Judgment will follow.

DATED: November 14, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

ORDER - 3