Cook et al v. Simpson et al

Filing 13

MEMORANDUM OPINION by Senior Judge John G. Heyburn II. The Court will by separate Order dismiss Plaintiffs' claims for lack of subject-matter jurisdiction. cc:Plaintiffs, pro se; Defendant (ERH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:14-CV-P589-H

ANTHONY COOK et al.

PLAINTIFFS

v.
JUDGE SIMPSON III et al.

DEFENDANTS
MEMORANDUM OPINION

Plaintiffs Anthony Cook, John E. Sutcliffe, and Jahjah Al Mahdi,1 prisoners incarcerated
in South Carolina, filed suit against the Honorable Senior Judge Charles R. Simpson III of the
U.S. District Court for the Western District of Kentucky; the Honorable Judges Michael A.
Shipp and Jose L. Linares of the U.S. District Court for the District of New Jersey; the State of
Kentucky; Kentucky Attorney General; “Ky. Federal Attorney”; the “United States (49) other
states”; and “all other defendants listed in Case 3:14-CV-P445-S.” Plaintiffs wrote in the caption
of the complaint form, “Petition to Remove” and “Affidavit Seeking Reinstate.”
The action was opened as a civil-rights suit. However, Plaintiffs caption the complaint as
a petition for removal. The complaint also seeks “to reopen and reinstate cases 3:14-CV-P445-S;
3:08-CV-P590-S and 3:08-CV-P559-S; Then have them consolidated pursuant to the [Foreign
Sovereign Immunity Act].”
“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in
the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). This general

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This Plaintiff also appears to list his name as Jongh Gabriel Jahjah Tishbite. The Court presumes that they are the
same person for the purposes of this memorandum and order. In several filings, additional Plaintiffs were listed, as
well. However, the case will be dismissed for lack of subject matter jurisdiction in any event.

presumption against removal means that it is the movant’s burden to establish that removal is
proper. Id. If a district court lacks jurisdiction over the case, the district court should sua sponte
remand the case to the state court. Page v. City of Southfield, 45 F.3d 128, 132 n.8 (6th Cir.
1995) (“We recognize that if a district court determines that the second ground of § 1447(c) is
satisfied, i.e., the court lacks subject matter jurisdiction over the case, the court can sua sponte
remand the case to state court at any time prior to final judgment.”) (emphasis in original).
Removal from a state court may only occur to the district court of the United States for
the district and division embracing the place wherein the state-court pleading is pending. See 28
U.S.C. §§ 1441(a), 1443. It is not clear what case Plaintiffs are seeking to remove to this Court,
but nowhere in the initiating document or in the voluminous attachments do Plaintiffs identify
any case from a Kentucky court which they seek to remove.
Although normally a remand to the state court is required when the federal district court
determines it lacks jurisdiction, the Court finds that remand is not possible here. The initiating
document is not a proper notice of removal in that it does not “contain[] a short and plain
statement of the grounds for removal, together with a copy of all process, pleadings, and orders
served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a). Moreover,
many of the documents filed by Plaintiff are unintelligible. Thus, the Court finds that dismissal
is appropriate.
Moreover, Plaintiffs seek reconsideration of the dismissal of another case. However, it is
improper to do so in a separate action. To the extent that Plaintiffs seek to have this action
consolidated with other actions, the actions they seek to consolidate have been dismissed, and
there are therefore no pending actions in the district court to consolidate.

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For the foregoing reasons, the Court will by separate Order dismiss Plaintiff’s claims for
lack of jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.”).
Date:

October 8, 2014

cc:

Plaintiffs, pro se
Defendants
4412.010

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