Schaller v. Banfield

Filing 63

ORDER Remanding the Matter Back to the Livingston Probate Court, State of Michigan, Order Regarding Various Motions Filed by the Parties and Order Designating This Action Closed. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DALE F. SCHALLER,
Petitioner,
Case No. 16-CV-11512-DT
v.
HON. DENISE PAGE HOOD
TONI RAE BANFIELD,
Respondent.
_____________________________________/
ORDER REMANDING THE MATTER BACK TO THE
LIVINGSTON PROBATE COURT, STATE OF MICHIGAN,
ORDER REGARDING VARIOUS MOTIONS FILED BY THE PARTIES
and
ORDER DESIGNATING THIS ACTION CLOSED
Upon a review of the Notice of Removal filed by Respondent Toni Rae
Banfield, which includes the Petition filed by Petitioner Dale F. Schaller before the
State of Michigan’s Livingston Probate Court, Respondent has not shown that the
Court has federal question jurisdiction over the action pursuant to 28 U.S.C. § 1331.
The federal district court is a court of limited jurisdiction. The district court is
only empowered to hear those cases that (1) are within the judicial power of the
United States as defined in Article III of the Constitution and (2) that have been
entrusted to the district court by a jurisdictional grant of Congress. Hodgson v.
Bowerbank, 9 U.S. 303 (1809); Insurance Corp. of Ireland v. Compagnie des Bauxites

de Guinee, 456 U.S. 694 (1982). The presumption is that a federal court lacks
jurisdiction in a particular case until it has been demonstrated that jurisdiction over the
subject matter exists. Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895).
The intent of Congress to drastically restrict federal jurisdiction in controversies
between citizens of different states has always been rigorously enforced by the courts.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-291 (1938). The
facts showing the existence of jurisdiction must be affirmatively alleged in the
Complaint. McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936); Fed.
R. Civ. P. 8(a)(1). If these facts are challenged, the burden is on the party claiming
jurisdiction to demonstrate that the court has jurisdiction over the subject matter.
Thomson v. Gaskill, 315 U.S. 442 (1942). “If the court determines at any time it lacks
subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3); Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737 (1976). The existence of
subject matter jurisdiction generally is a question of law. Greater Detroit Resource
Recovery Author. v. United States, 916 F.2d 317, 319 (6th Cir. 1990). The Court of
Appeals reviews a district court's factual determinations regarding jurisdictional issues
for clear error. Gafford v. General Electric Co., 997 F.2d 150, 155 (6th Cir. 1993).

The removing party cites federal question subject matter jurisdiction based on
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28 U.S.C. § 1441(a), which is the removal procedural statute, not the subject matter
jurisdiction statute which would form the basis of a removal of a case from state court.
The Court’s review of the attached Petition for Approval of Sale of Real Estate filed
by Petitioner fails to establish federal question subject matter jurisdiction. It appears
Respondent is removing a matter filed before the Livingston County Probate Court
which was remanded by the Bankruptcy Court to the Livingston County Probate
Court.

(See, related Bankruptcy Appeal, In re Gentry, Case No. 15-14402)

Respondent is circumventing the Bankruptcy Court’s remand order by removing the
matter from the Livingston County Probate Court directly to the District Court. In any
event, this Court’s initial review of the Petition for Approval of Sale of Real Estate
filed by Petitioner, which appears to be the “pleading” Respondent removed to this
Court as a basis for the Court’s federal question subject matter jurisdiction, does not
allege any claims “arising under the Constitution, laws, or treaties of the United
States” as required by 28 U.S.C. § 1331.
The Court is aware that it has subject matter jurisdiction over bankruptcy cases
and proceedings under 28 U.S.C. § 1334. All bankruptcy matters are automatically
referred to the Bankruptcy Court under E.D. Mich. LR 83.50. Based on the removing
party’s submissions, the Bankruptcy Court has ruled on this matter and remanded the
matter to the Livingston County Probate Court. The removing party failed to cite the
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appropriate law which authorizes the removal under § 1334.
In addition, for the reasons set forth in the Court’s Opinion in the related
Bankruptcy Appeal Case No. 15-14402, In re Gentry, the Court finds the current
action must be remanded back to the Livingston County Probate Court. Any
Counterclaims and Third Party Complaints subsequently filed in this case number are
dismissed without prejudice because the Court lacks subject matter jurisdiction over
the initial removed action.
Accordingly,
IT IS ORDERED that the Motions to Dismiss and/or Remand filed by
Petitioner Dale F. Schaller (Doc. Nos. 5, 45, 46) are GRANTED, but only for the
reasons set forth above and in the Court’s Opinion affirming the Bankruptcy Court in
Case No. 15-14402.
IT IS FURTHER ORDERED that the Motions to Strike filed by Respondent
Toni Rae Banfield (Doc. Nos. 8, 11, 27) are DENIED as MOOT.
IT IS FURTHER ORDERED that the Motion to Disqualify Counsel filed by
Respondent Toni Rae Banfield (Doc. No. 20) is DENIED as MOOT.
IT IS FURTHER ORDERED that the Motions for Sanctions filed by
Respondent Toni Rae Banfield (Doc. Nos. 21, 49) are DENIED as MOOT.
IT IS FURTHER ORDERED that the Motion to Deny Entry of Default of
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Counter-Complaint (Doc. No. 57) is GRANTED and the Clerk’s Entry of Default
(Doc. No. 50) is SET ASIDE, in light of the Court’s ruling it lacks subject matter
jurisdiction over this removed action.
IT IS FURTHER ORDERED that the related Counterclaims and Third-Party
Complaints filed (Doc. Nos. 15, 16, 17, 22, 23) are DISMISSED without prejudice to
the parties filing such in the State Court (if appropriate), the Court finding it lacks
subject matter jurisdiction over the initial removed action.
IT IS FURTHER ORDERED that the Petition for Appointment of Special
Fiduciary (Doc. No. 24) is DENIED as MOOT.
IT IS FURTHER ORDERED that this action is REMANDED back to the
Livingston County Probate Court, State of Michigan. The Clerk shall prepare the
necessary documents to effectuate the remand forthwith.
IT IS FURTHER ORDERED that this action is designated as CLOSED on the
Court’s docket.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: July 29, 2016

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I hereby certify that a copy of the foregoing document was served upon counsel of
record on July 29, 2016, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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