Franke v. Franke

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Dismiss Defendant's Petition for Removal and/or Motion to Remand to State Court is GRANTED. [Doc. 13 .] IT IS FURTHER ORDERED that all other pending motions are DENIED. [Doc. 9 .]An Order of Remand shall accompany this Memorandum and Order. Signed by Magistrate Judge Nannette A. Baker on 1/12/2018. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELEANOR O. FRANKE,
Plaintiff,
v.
NICHOLAS A. FRANKE,
Defendant.

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Case No. 4:17-CV-2734 NAB

MEMORANDUM AND ORDER 1
This matter is before the Court on Defendant’s Motion to Transfer Case to the Central
District of California pursuant to 28 U.S.C. § 1404(a) and Plaintiff’s Motion to Dismiss
Defendant’s Petition for Removal and/or Motion to Remand to State Court. [Docs. 9, 13.]
Plaintiff originally filed this Petition for Dissolution of Marriage in the 21st Judicial
Circuit of St. Louis County, Missouri on April 6, 2017. [Doc. 2.] Defendant removed the action
to this court on November 18, 2017, asserting that this Court has diversity jurisdiction under 28
U.S.C. § 1332. Defendant then filed a Motion to Transfer the Case to the Central District of
California and Plaintiff filed a Motion to Dismiss or Remand.

In a subsequent pleading,

Defendant also stated that “Defendant consents to the dismissal of this action as Plaintiff requests
pursuant to Federal Rule of Civil Procedure 12(b)(1) 2.” [Doc. 14 at 1.]
The Court will grant Plaintiff’s Motion to Remand. This Court is required to remand an
action if it appears that subject matter jurisdiction is lacking. 28 U.S.C. § 1447(c). This Court
does not have jurisdiction over cases arising under family law, including any action for which the

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The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). [Doc. 16.]
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Federal Rule 12(b)(1) addresses the dismissal of actions for lack of subject matter jurisdiction.

subject is a divorce, allowance of alimony, or child custody. See Kahn v. Kahn, 21 F.3d 859,
861 (8th Cir. 1994) (citing Barber v. Barber, 62 U.S. 582, 584 (1858)). “The domestic relations
exception, as explained in Kahn, precludes subject matter jurisdiction over this case.” Wallace v.
Wallace, 736 F.3d 764 (8th Cir. 2013).
Although Defendant concedes that this case should be dismissed for lack of subject
matter jurisdiction, Defendant also argues that instead of remanding this action to the court in St.
Louis County, the Court should transfer this case to federal court in California, because of his
counterclaim against Plaintiff under the Federal Computer Fraud and Abuse Act, 18 U.S.C.
§ 1030(g). The Court will deny this request for two reasons. Although district courts have
original jurisdiction of all civil actions under the Constitution, law, or treaties of the United
States, the “well-pleaded complaint” rule governs whether a case “arises under federal law for
purposes of 28 U.S.C. § 1331.” Holmes Group, Inc. v. Vornado Air Circulation Sys. Inc., 535
U.S. 826, 830 (2002). Federal jurisdiction generally exists only when a federal question is
presented on the face of plaintiff’s properly pleaded complaint. Id. at 831 (emphasis in original).
“It follows that a counterclaim-which appears as part of the defendant’s answer, not as part of the
plaintiff’s complaint- cannot serve as the basis for ‘arising under’ jurisdiction.” Id. In Holmes,
the U.S. Supreme Court expressly stated that it declined to “transform the long standing wellpleaded complaint rule into the ‘well-pleaded complaint or counterclaim rule.’” Therefore,
Defendant’s “injection of a federal question in a defense or counterclaim does not create the
requisite federal ground for removal to federal court.” Farmers Coop. Elevator v. Doden, 946
F.Supp. 718, 728 (N.D. Iowa 1996). Second, “a court without subject matter jurisdiction cannot
transfer a case to another court.” Klett v. Pim, 965 F.2d 587, 591 n. 7 (8th Cir. 1992). This case
was not removable, therefore, the Court has no authority to transfer this case where the Court

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lacks subject matter jurisdiction and Defendant inserted a counterclaim based on federal law.
Because the face of Plaintiff’s complaint involves a request for dissolution of marriage and child
custody, the Court will remand this action to state court.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Dismiss Defendant’s Petition for
Removal and/or Motion to Remand to State Court is GRANTED. [Doc. 13.]
IT IS FURTHER ORDERED that all other pending motions are DENIED. [Doc. 9.]
An Order of Remand shall accompany this Memorandum and Order.
Dated this 12th day of January, 2018.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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