In re: Estate of William D. Erickson

Filing 16

ORDER: The Motion to Remand to State Court [ECF No. 7 ] is DENIED. The Motion to Consolidate Cases [ECF No. 14 ] is GRANTED. (Written Opinion) Signed by Judge Joan N. Ericksen on 2/23/2018. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

In re: Estate of William D. Erickson,
Case No. 17-cv-4670 (JNE/KMM)
ORDER

Decedent.

Before the Court are two motions in the above-entitled matter. The Estate of
William D. Erickson (“the Estate”) seeks to remand to state court its notice of
disallowance against the United States on the grounds that removal was untimely. The
United States moves to consolidate the removed action with its other pending action
against the Estate in this Court. For the reasons set forth below, the Estate’s motion to
remand is denied, and the United States’ motion to consolidate is granted.
BACKGROUND
William D. Erickson died on October 13, 2016. The Estate of William D. Erickson
(“the Estate”) was opened on April 13, 2017. It is currently being probated in the Anoka
County District Court in Minnesota. In re: Estate of William D. Erickson, Court File No.
02-PR-17-197.
At the time of his death, Erickson owed federal income taxes for 2003 through
2008, inclusive. On May 4, 2017, the IRS filed a proof of claim with the Estate, notifying
the Estate’s attorney of unpaid tax liabilities totaling $31,122.47. On May 5, 2017, the
United States filed a complaint in this Court to reduce to judgment the income tax

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assessments against Erickson. United States v. Jane Doe, as personal representative of
the Estate of William D. Erickson, Case No. 17-cv-1492. On June 29, 2017, Hope A.
Stewart was appointed as personal representative of the Estate. The United States then
amended its complaint in this Court to name Stewart as personal representative of the
Estate. United States v. Hope A. Stewart, as personal representative of the Estate of
William D. Erickson, Case No. 17-cv-1492 (“Stewart I”). Stewart answered and denied
the Estate’s liability on August 10, 2017.
On September 28, 2017, Stewart filed a notice of disallowance in Anoka County
District Court. ECF No. 1-1. That notice asserted that the IRS’s claim of $31,122.27
against the estate would be barred unless the IRS filed a petition for allowance or
commenced a proceeding against Stewart within two months. On October 12, 2017, the
United States removed Stewart’s notice of disallowance to this Court under
28 U.S.C. § 1442, creating the above-entitled matter (“Stewart II”). On November 13,
2017, Stewart moved to remand Stewart II, arguing that removal by the United States was
untimely. On November 20, 2017, the United States moved to consolidate Stewart II with
Stewart I. Both motions are before the Court now.
DISCUSSION
A. Motion to Remand
Stewart argues that the United States’ removal was untimely. She contends that
the United States was required to file its notice of removal by June 30, 2017, or 30 days
from the date on which the United States’ proof of claim form was filed with the Anoka
County District Court. Stewart argues that the 30-day clock began on May 30 because
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this was the “latest date by which it would have been ascertainable by the [United States]
that the state probate case was removable.” Pl.’s Mot. Remand at 2. In so arguing,
Stewart appears to rely on 28 U.S.C. § 1446(b)(3). Under that provision, “if the case
stated by the initial pleading is not removable, a notice of removal may be filed within
thirty days after receipt by the defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may first be ascertained
that the case is one which is or has become removable.”
Stewart’s timeliness argument is unsuccessful. Only a defendant can remove a
state action to federal court, and the United States was not a defendant in any action
against Stewart as of May 30, 2017. Filing the proof of claim form did not transform the
United States into a defendant. As such, the case had not become removable by the date
Stewart proposes, and as such, the United States was not faced with a June 30, 2017
deadline for removal. Accordingly, Stewart’s remand motion is denied.
B. Motion to Consolidate
The United States moves to consolidate Stewart I and Stewart II. Stewart I is the
suit brought by the United States against Stewart seeking to reduce Erickson’s income tax
assessments to judgment. Stewart II, the above-entitled matter, involves Stewart’s
attempt to disallow the IRS’s claim to Erickson’s tax assessments. The United States
argues that the actions involve common questions of law and fact, as required under Fed.
R. Civ. P. 42(a)(2). Stewart has not objected to the motion.
The Court agrees with the United States that the two actions involve common
questions of law and fact, and that consolidation is appropriate in the interests of
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convenience and judicial economy. See Enter. Bank v. Saettele, 21 F.3d 233, 235 (8th
Cir. 1994). Accordingly, the motion to consolidate is granted.
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated
above, IT IS ORDERED THAT:
1. The Motion to Remand to State Court [ECF No. 7] is DENIED.
2. The Motion to Consolidate Cases [ECF No. 14] is GRANTED.

Dated: February 23, 2018

s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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