Pope v. Heitman

Filing 21

MEMORANDUM DECISION AND ORDER remaning Case No. CV-2010-000206 to the Sixth Judicial District of the State of Idaho, In and For the County of Bear Lake. The Court will retain jurisdiction pursuant to 28 U.S.C. § 1447 to determine the amount of f ees to be paid. Petitioner Ralph-Edward Heitman is herebyenjoined from filing or removing any further action, pleading, or letters in the United States District Court for the District of Idaho regarding the topics contained herein, without first obta ining leave of the Chief Judge of the Court. The Clerk of the Court shall not accept any pleadings or letters from Ralph-Edward Heitman regarding the listed matters herein without first obtaining consent from the Chief Judge of the United States District Courtfor the District of Idaho. Signed by Judge B. Lynn Winmill. Associated Cases: 4:11-cv-00080-BLW, 4:11-cv-00170-BLW(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

RALPH EDWARD HEITMAN
Plaintiff,

Case No. 4:11-cv-00170-BLW

v.

MEMORANDUM DECISION AND
ORDER

DAN L. POPE, d/b/a DAN POPE
TRUSTEE et al;
Defendants.

INTRODUCTION
Before the Court is Respondents Dan L. Pope d/b/a Dan Pope’s Motion to Remand
and Motion for Protection from Vexatious Litigant (Dkt. 6). For the reasons set forth
below, the Court will grant the Motion.

Memorandum Decision and Order - 1

ANALYSIS
1.

Motion to Remand
On April 20, 2011, Petitioner Ralph Edward Heitman removed this action from state

court pursuant to 28 U.S.C. § 1441. In March 2011, Heitman previously sought to
remove the same state court in Case No. 4:11-cv-00080-BLW. The Court has ordered
that Case No. 4:11-cv-00080-BLW be remanded. For the same reasons, the Court
ordered that Case No. 4:11-cv-00080-BLW be remanded, the Court will order that this
case be remanded.
To remove an action to federal court, there must be a legitimate basis for the
removal establishing original jurisdiction with the district court. 28 U.S.C. § 1441(a). The
“burden of establishing federal jurisdiction is on the party seeking removal, and the
removal statute is strictly construed against removal jurisdiction.” Prize Frize, Inc. v.
Matrix Inc., 167 F.3d 1261, 1265 (9th Cir.1999). Any doubt as to the right of removal is
resolved in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992).
In this case, Heitman fails to make the necessary showing. Respondents Dan
Pope, d/b/a, Dan Pope Trustee (collectively “Pope”) initiated the state court litigation in
Bear Lake County Case No. CV-2010-000206 to remove a $4,110,000 lien that Heitman
had placed on Pope’s real property in Bear Lake County. On its face, this claim does not
appear to arise under the Constitution, laws or treaties of the United States as required for
removal under 28 U.S.C. §1331. Nor does Heitman allege that complete diversity exists
or that the amount in controversy exceeds $75,000 in accordance with 28 U.S.C. §1332.

Memorandum Decision and Order - 2

Instead, Heitman seems to argue that this Court has subject matter jurisdiction because
the state court judge unfairly sided with Pope and/or Heitman seeks to test a bankruptcy
court decision to which he was not a party. Neither of these constitutes a legitimate basis
for removal jurisdiction.
Because no legitimate basis exists for removal jurisdiction, the case will be
remanded to state court pursuant to 28 U.S.C. § 1447(c) for lack of subject matter
jurisdiction.
2.

Motions for Protection from Vexatious Litigant and for Attorney Fees
This Court has inherent power to “regulate the activities of abusive litigants by

imposing carefully tailored restrictions under the appropriate circumstances.”
DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (quoting Tripati v.
Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). Additionally, 28 U.S.C. § 1651(a) vests
this Court with the power to enjoin litigants with abusive and lengthy histories of abuse
from future filings or to impose such other restrictions pre-filing as may be necessary to
prevent such abuse. Id. The Court may also impose such other pre-filing restrictions as
may be necessary to prevent such abuse. Id. A pre-filing order must be tailored to fit the
vice that the court has encountered, and it may not prevent all of Plaintiff’s lawsuits from
being filed. De Long, 912 F.2d at 1148.
In Case No. 4:11-cv-00080-BLW, the Court reiterated the Pre-Filing Review
Order it issued in Case No. 4:07-cv-00210-BLW. This Order directed the Clerk of the
Court to reject any filing of action, pleading, or letters in the U.S. District Court for the

Memorandum Decision and Order - 3

District of Idaho involving claims that had previously been found to lack merit without
first obtaining leave of the Chief Judge of the Court. Those claims previously found to
lack merit include: “(1) Any action involving property in the alleged homeowners
development of Bear Lake West Home Owners Association, . . . or any persons
associated with such corporation, . . . (2) Any action described as analogous to federal
admiralty law or maritime law; and (3) Any action bearing any description arising out of
or related to the subject matter of Case Nos. CV-06-477-E-JLQ, CV- 07-150-E-BLW,
CV-07-209-E-BLW, and CV-07-210-E-BLW.” Pre-Filing Review Order, Case No. CV07-210-E-BLW, Dkt. 40.
This removal action involves the same facts and circumstances as Case No. 4:07cv-00210-BLW, in which the Pre-Filing Order was entered. Yet, Heitman did not abide
by the Court’s previous order directing Heitman to seek pre-filing approval before
removing this action. Therefore, both the Court and opposing parties’ time and money
has been wasted. Accordingly, the Court reiterates its previous pre-filing order as set
forth below.
In addition, finding that Heitman’s removal action was frivolous, unreasonable
and without foundation, the Court will award Pope attorney fees under 42 U.S.C. § 1988.
Pope shall file a short motion and supporting documents explaining the amount of
attorney fees requested and how such fees were incurred in obtaining a remand of this
case to state court. Such a motion and supporting documents shall be filed within 30
days of the date of this order. Heitman may then file a response brief, and the Court will

Memorandum Decision and Order - 4

make a final determination. Even though the Court is remanding the case to state court,
this Court will retain jurisdiction to determine the amount of fees to be paid because “the
award of attorney's fees pursuant to 28 U .S.C. § 1447(c) is collateral to the decision to
remand ....” Id.
ORDER
It IS ORDERED that that the above-entitled action is remanded to the district
court of the Sixth Judicial District of the State of Idaho, In and For the County of Bear
Lake, Case No. CV-2010-000206; and the Clerk shall mail a certified copy of this Order
to the Clerk of the aforesaid Idaho state court. The Court will retain jurisdiction pursuant
to 28 U.S.C. § 1447 to determine the amount of fees to be paid.
IT IS FURTHER ORDERED that Petitioner Ralph-Edward Heitman is hereby
enjoined from filing or removing any further action, pleading, or letters in the United
States District Court for the District of Idaho regarding the following topics, without first
obtaining leave of the Chief Judge of the Court: (1) Any action involving property in the
alleged homeowners development of Bear Lake West Home Owners Association,
including claims containing indecipherable or nonsensical phrases and allegations
involving Ralph-Edward Heitman, Bear Lake West Home Owners Association
Corporation or any persons associated with such corporation, or the law firm of Racine
Olsen Nye Budge & Bailey or any attorneys associated with such firm; (2) Any action
described as analogous to federal admiralty law or maritime law; and (3) Any action
bearing any description arising out of or related to the subject matter of Case Nos. 4:06-

Memorandum Decision and Order - 5

cv-00477-JLQ, 4:07-cv-00150- BLW, 4:07-cv-00209-BLW, 4:07-cv-00210-BLW, 4:11cv-00080-BLW, and 4:11-170-BLW.
IT IS FURTHER ORDERED that the Clerk of the Court shall not accept any
pleadings or letters from Ralph-Edward Heitman regarding the above listed matters
without first obtaining consent from the Chief Judge of the United States District Court
for the District of Idaho.

DATED: November 14, 2011

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision and Order - 6