Auld v. John W. Auld, Sr. Trustee and Trusts et al

Filing 17

MEMORANDUM AND ORDER denying as moot 3 Motion for Leave to Proceed in forma pauperis; denying as moot 6 Motion for Leave to File Excess Pages; granting 7 Motion to Remand to State Court; denying as moot 8 Motion to Appoint Counsel. Signed by District Judge J. Thomas Marten on 2/22/2013. Mailed to pro se party Stuart N. Auld by regular mail. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STUART N. AULD,
Plaintiff,
v.

Case No. 13-2031-JTM

SUN WEST MORTGAGE COMPANY,
INC., et al.,
Defendant.
MEMORANDUM AND ORDER
The court has before it a joint motion to remand and assess attorneys’ fees and
sanctions (Dkt. 7) brought by intervenor Sun West Mortgage Company, Inc. and
defendant John W. Auld, Jr. as trustee of the John William Auld, Sr. Living Trust
Agreement. The court grants the motion in part and denies the motion in part for the
following reasons.
I. Factual Background
The underlying state court case that is the subject of plaintiff Stuart Auld’s
removal pleading consists of two cases that were consolidated in Johnson County
District Court—Case No. 11CV04594, filed on May 27, 2011, and Case No. 11LA06470,
filed on June 23, 2011. Auld filed the first case pro se against his father, John W. Auld,
Sr., relating to an alleged security interest Auld claimed in real property owned and
occupied by Auld, Sr. The second case was a forcible detainer action filed by Auld, Sr.
against Auld to evict Auld from the property. After Auld, Sr. died in October 2011, the

property transferred to the Auld, Sr. Trust. Auld has resided at the property since
before the suits were filed, and he continues to reside there.
Sun West, as holder of a mortgage on the property, was allowed to intervene in
the consolidated case. Sun West’s liens were found to be valid. Sun West and the Auld,
Sr. Trust filed separate motions for summary judgment against Auld; both motions
were granted. The journal entries granting the motions resolved all claims by or against
Auld. The entry granting the Auld, Sr. Trust’s motion for summary judgment ordered
the immediate eviction of Auld from the property. Auld has not left the property.
Auld filed a motion to reconsider and/or set aside order of the court on
December 3, 2012, which the state court denied a week later. Auld then filed a motion
for new trial and/or transfer of case and recusal of judge on December 20, 2012. The
court declared the motion null and void and not to be considered because Auld had
filed the motion pro se, despite his being represented by counsel at the time.
II. Legal Standard
Under 28 U.S.C. § 1446(a), a defendant desiring to remove a civil action from
state court shall file in the district court of the United States a notice of removal signed
pursuant to FED. R. CIV. P. 11 and containing a short and plain statement of the grounds
for removal. If initially the case is not removable, “a notice of removal may be filed
within thirty days after . . . it may first be ascertained that the case is one which is or has
become removable.” § 1446(b)(3). A case relying on diversity jurisdiction “may not be
removed under subsection (b)(3) . . . more than 1 year after commencement of the

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action, unless the district court finds that the plaintiff has acted in bad faith in order to
prevent a defendant from removing the action.” § 1446(c)(1).
The removal statutes are construed narrowly. Pritchett v. Office Depot, Inc., 420
F.3d 1090, 1094–95 (10th Cir. 2005). “[T]here is a presumption against removal
jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). Doubts about
removal must be resolved in favor of remand. Fajen v. Found. Reserve Ins. Co., 683 F.2d
331, 333 (10th Cir. 1982). “The 30-day time limitation of § 1446(b) is mandatory and is
strictly construed.” McCain v. Cahoj, 794 F.Supp. 1061, 1062 (D. Kan. 1992). “Failure to
timely file a notice for removal is a defect requiring remand to the state court.” First Nat.
Bank & Trust Co. in Great Bend v. Nicholas, 768 F.Supp. 788, 790 (D. Kan. 1991). “The
failure to comply with these express statutory requirements for removal can fairly be
said to render the removal ‘defective’ and justify a remand.” Huffman v. Saul Holdings
Ltd. P’ship, 194 F.3d 1072, 1077 (10th Cir. 1999).
The right to remove may be waived. Id. (noting that a defendant who does not
act within the statutory removal deadlines waives its right to remove the action to
federal court). “A defendant may waive the right to remove by taking some such
substantial defensive action in the state court before petitioning for removal.” Aqualon v.
Mac Equip., Inc., 149 F.3d 262, 264 (4th Cir. 1998) (emphasis in original).
If a defendant could remove a case to federal court after a final and
unfavorable determination had been made on the merits of the case in
state court, he would be able to litigate the same case twice. This situation
is precisely what must be avoided in the interests of judicial economy,
fairness, convenience, and comity.

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Sayre Enter., Inc. v. Allstate Ins. Co., 448 F.Supp.2d 733, 735 (W.D.Va. 2006) (emphasis in
original). A defendant can waive the right to remove by litigating after the case actually
becomes removable. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347–
48, (1999).
III. Analysis
Plaintiff’s removal fails for several reasons. First, the rules contemplate removal
by the defendant, not a plaintiff. See 28 U.S.C. § 1446(a) (stating the procedure for a
“defendant or defendants desiring to remove any civil action from a State court . . . .”).
Second, plaintiff is out of time to remove the case. Diversity jurisdiction in this case was
only present, if at all, after Sun West intervened and served its answer on the parties on
February 27, 2012. Even if diversity jurisdiction arose upon Sun West’s intervention,
plaintiff did not file his removal pleading until January 16, 2013, well beyond the 30 day
window after diversity jurisdiction became apparent. See § 1446(b)(3). Additionally,
plaintiff’s removal was filed well beyond the maximum one year period set forth in 28
U.S.C. § 1446(c)(1), as the underlying state court cases were filed more than a year and a
half earlier, on May 27, 2011 and June 23, 2011, respectively.
However, even if Plaintiff could have removed this case via a timely-filed Notice
of Removal, he waived his right to do so by actively litigating this case for more than
ten months after Sun West intervened in the State Court Lawsuit. See Murphy Bros., Inc.,
526 U.S. at 347–48. After Sun West intervened on February 27, 2012, Plaintiff or his
attorneys filed at least 16 substantive pleadings in the state action, propounded two sets
of discovery, and participated in several court hearings, before filing for removal on
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January 16, 2013. Indeed, summary judgment was granted against plaintiff in both
cases, making removal at this point inappropriate. The court finds plaintiff waived any
right to remove, assuming he had the right to remove in the first place. Accordingly, the
court grants the motion to remand.
Defendants ask for an award of attorney’s fees for defending this lawsuit in
federal court. Additionally, under 28 U.S.C. § 1447(c), the court ordering remand of the
case may require payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal. The court grants the motion to a maximum of
$2,500.
IT IS THEREFORE ORDERED this 22nd day of February, 2013, that the motion to
remand (Dkt. 7) is granted. The motion for attorneys’ fees and costs is granted to a
maximum of $2,500.
IT IS ALSO ORDERED that the remaining pending motions (Dkts. 3, 6, and 8) are
denied as moot.

s/ J. Thomas Marten
J. THOMAS MARTEN
DISTRICT COURT JUDGE

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