Manna Ministry Center v. Adrian et al

Filing 14

ORDER granting 7 Motion to Remand to State Court. Certified copy of Order mailed to State Court Clerk.; denying 11 Motion for Leave to file third-party complaint. Signed by Chief Judge Karen E. Schreier on 1/23/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MANNA MINISTRY CENTER, a
South Dakota nonprofit
corporation,
Plaintiff,
vs.
JERRY & SONJA ADRIAN,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civ. 11-4145-KES

ORDER GRANTING MOTION FOR
SUMMARY REMAND AND
REQUEST FOR JUDICIAL
NOTICE AND DENYING LEAVE
TO FILE A THIRD-PARTY
COMPLAINT

Defendants, Jerry and Sonja Adrian (the Adrians), filed a pro se notice of
removal of a state court action to federal court on October 14, 2011. Plaintiff,
Manna Ministry Center, moves for summary remand of the action to state court
pursuant to 28 U.S.C. § 1446(c)(4) or in the alternative for a remand order
pursuant to 28 U.S.C. § 1447(c). Manna Ministry asks this court to take
judicial notice pursuant to Rule 201 of the Federal Rules of Evidence of the file
in the underlying state court action in the Second Judicial Circuit, Lincoln
County, bearing the caption Manna Ministry Center v. Jerry and Sonja Adrian,
Civ. 11-647. Manna Ministry also seeks an order requiring the Adrians to pay
just costs and actual expenses incurred, including attorneys’ fees, as a result
of this removal action. The Adrians oppose Manna Ministry’s motion for
summary remand and have filed a motion for leave to file a third-party
complaint. Manna Ministry opposes the filing of a third-party complaint.

PROCEDURAL HISTORY
The present action stems from a forcible entry and detainer suit
pursuant to South Dakota law that arose in the wake of a dispute over a parcel
of property in Lincoln County, South Dakota. The Adrians were served with the
complaint and summons on September 6, 2011. See Docket 8-1, Elector’s
Affidavit Evidencing Service of Summons and Complaint on Defendants. The
Adrians, proceeding pro se, filed an answer and a motion to dismiss. The
matter was scheduled for trial to commence on October 13, 2011. During the
trial, the Adrians sought an extension of time, which the circuit court
announced it would grant if the Adrians posted a $35,000 bond. The Adrians
failed to do so. On October 13, 2011, after the close of the evidence, but before
the circuit court announced its decision, the Adrians filed a document with the
Lincoln County Clerk of Courts styled as a Notice of Removal. Later that same
day, the circuit court ruled in Manna Ministry’s favor and entered judgment
against the Adrians. See Docket 8-2, Judgment. The Adrian’s removal papers
were not filed with the federal district court until October 14, 2011.
DISCUSSION
I.

Request for Judicial Notice
Manna Ministry requests that this court take judicial notice pursuant to

Rule 201 of the Federal Rules of Evidence of the file in the underlying state
court action in the Second Judicial Circuit, Lincoln County, bearing the

2

caption Manna Ministry Center v. Jerry and Sonja Adrian, Civ. 11-647. The
Eighth Circuit Court of Appeals has recognized that it is appropriate for federal
district courts to take judicial notice of state court files when they are relevant
to issues in federal court. See Knutson v. City of Fargo, 600 F.3d 992, 1000 (8th
Cir. 2010). Here the state court file is relevant in determining whether there is
a basis for federal jurisdiction. Manna Ministry’s request for judicial notice is
granted.
II.

Motion to Remand
Analysis of the propriety of removal requires interpretation of the removal

statutes, 28 U.S.C. § 1441 et seq., in order to determine whether the case could
have originally been filed in federal court. See City of Chicago v. Int’l College of
Surgeons, 522 U.S. 156, 163 (1997). The right to remove a case from a state
court to a federal court is purely statutory. See 14B Charles Alan Wright et. al,
Federal Practice and Procedure: Jurisdiction § 3721 (4th ed. 1998). Many federal
courts strictly construe a motion to remove and resolve all doubts in favor of
remand. See, e.g., Cotton v. South Dakota by and through the S.D. Dep’t of Social
Servs., 843 F. Supp. 564, 568 (D.S.D 1994) (“If the propriety of removal is
doubtful, the case is to be remanded.”).

3

A.

The Adrians’ notice of removal was untimely.

Manna Ministry argues that remand to state court is appropriate under
28 U.S.C. § 1446(c)(4) for two reasons. First, Manna Ministry asserts that the
Adrians’ motion for removal is time barred under § 1446(b). Second, Manna
Ministry argues that removal to federal court after a judgment has been issued
in state court is improper.1
Section 1446(b) requires a notice of removal to be filed within “thirty days
after the receipt by the defendant . . . of a copy of the initial pleading setting
forth the claim for relief . . . or within thirty days after the service of summons
upon the defendant if such initial pleading has then been filed in court and is
not required to be served on the defendant, whichever period is shorter.”
Manna Ministry served the Adrians with the summons and complaint on
September 6, 2011. See Docket 8-1, Elector’s Affidavit Evidencing Service of
Summons and Complaint on Defendants. The Adrians admit that they received
a copy of the summons and complaint from the elector.2 Thus, assuming that
the complaint stated a federal issue that would have provided a basis for

1

Because it is clear that the Adrians’ motion for removal is time barred
and does not state a basis for federal jurisdiction, this court declines to
address this argument.
2

The Adrians assert that they were served on August 29, 2011, rather
than on September 6, 2011 as specified in the affidavit. Under either version of
the facts, the Adrians’ notice of removal is untimely.
4

removal, the last date at which the Adrians could have removed the suit in
compliance with § 1446(b) was Thursday, October 6, 2011.
The Adrians also contend that:
The first notice of a case number, from the law firm, came with the
notice of hearing dated October 6, 2011, giving notice of the
hearing October 13, 2011. It was then that the Answer and Motion
to Dismiss (previously hand delivered) [to the law firm representing
Manna Ministry] was filed with the case. It was only then that any
removal action could be done.
Docket 10, Response to Motion to Remand, at 1-2. But the Adrians
misunderstand the procedure required by the removal statute. Section 1446
does not require a defendant to file a responsive pleading before a notice of
removal may be filed. Instead, the removal statute requests the defendant to
file the notice of removal within thirty days after service of the summons and
compliant. The date the summons and complaint were given a case number is
not relevant. Thus, the Adrians’ notice of removal was not timely filed.
B.

This court lacks subject matter jurisdiction.

Manna Ministry argues in the alternative that even if the Adrians’ notice
of removal ws timely filed, removal to federal court was improper because the
stated basis for removal does not “arise under” federal law.
“A defendant generally is required to cite the proper statutory basis for
removal and to allege facts from which a district court may determine whether
removal jurisdiction exists.” Pet Quarters, Inc. v. Depository Trust & Clearing
Co., 559 F.3d 772, 778 (8th Cir. 2009). The subject matter jurisdiction of this
5

court may derive from the citizenship of the parties, see 28 U.S.C. § 1332, a
federal question posed by the underlying lawsuit, see 28 U.S.C. § 1331, or
special circumstances covered by federal statute. Because the parties are both
citizens of South Dakota and none of the statutory grounds for removal apply,
this action is removable only upon a showing that “federal question”
jurisdiction exists as set forth in § 1441(b).
On the civil cover sheet the Adrians completed when filing their Notice of
Removal, the Adrians were asked to identify the civil statute under which they
were filing.3 The Adrians replied, “denial of due process/right to property” and
did not identify a statute. While failure to provide a proper statutory basis is
not always jurisdictionally fatal, such forgiveness is limited to cases where the
jurisdictional requirements have been met. See Wiles v. Capitol Indemnity Corp.,
280 F.3d 868,871 (8th Cir. 2002). That is not the case here.
“Removal based on federal question jurisdiction is governed by the well
pleaded complaint rule: jurisdiction is established only if a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.” Pet
Quarters, 559 F.3d at 779. The complaint here raises no issues of federal law.

3

The Adrians appear to be arguing that federal jurisdiction is proper
based on their claim that they were denied due process of law in the state court
proceedings. See Docket 10, Response to Motion to Remand, at 2 (“The demand
for $35,000 cash appeared to be extortion and an excuse to justify denial of
due process and denial of rights, under the Law of the Land, the Constitution
for the United States of America, under the color of ‘rules’ or ‘rule making.’ ”).
6

Nor does adjudication of the only state-law claim “turn on a federal
constitutional or other important federal question.” Id. (citing Merrell Dow
Pharms. Inc. v. Thompson, 478 U.S. 804, 808-09 (1986)). Thus, subject matter
jurisdiction is not predicated on 28 U.S.C. § 1441(b), the language of which
tracks the “arising under” statute, 28 U.S.C. § 1331.
The Adrians’ claim that the state court is depriving them of due process
of law is also insufficient to confer federal subject matter jurisdiction under
§ 1443. Section 1443 states:
Any of the following civil actions or criminal prosecutions,
commenced in a State court may be removed by the defendant to
the district court of the United States for the district and division
embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce
in the courts of such State a right under any law providing
for the equal civil rights of citizens of the United States, or of
all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from
any law providing for equal rights, or for refusing to do any
act on the ground that it would be inconsistent with such
law.
To demonstrate that removal is proper under § 1443(1), a defendant first “must
show that he relies upon a law providing for equal civil rights stated in terms of
racial equality.” Neal v. Wilson, 112 F.3d 351, 355 (8th Cir. 1997). A defendant
is then also required to show that he or she “is denied or cannot enforce the
specified federal rights in the courts of the State.” Johnson v. Mississippi, 421
U.S. 213, 219 (1975). This showing is made if a state law denies the removal
7

petitioner federal rights or in “the unusual case where an equivalent basis
could be shown for an equally firm predication that the defendant would be
denied or cannot enforce the specified federal right in state court.” Id.
Removal under § 1443(2) is “available only to federal officers and to
persons assisting such officers in the performance of their official duties.”
Greenwood v. Peacock, 384 U.S. 808, 815 (1966).
The Adrians’ general due process claim does not meet these stringent
requirements. They have not shown that they rely on a law providing for equal
civil rights stated in terms of racial equality. Nor have they shown that there is
a state law preventing them, or a firm basis for predicting that they will be
prevented, from raising their federal claims in state court. Thus, the action is
not removable under § 1443.
Finally, the Adrians’ pro se status does not permit them to remove an
action to federal court based on a generic due process claim. See, e.g., Chevy
Chase Bank v. Reyes, No. 09-2023, 2009 WL 5030781 at *1-2 (E.D. Mo.
Dec. 14, 2009) (holding that a pro se litigant’s generic claim that a state court
was depriving him of due process of law in a quiet title action was insufficient
to confer federal jurisdiction and the case was remanded to state court). Thus,
the Adrians have failed to identify a statutory basis for removal and the court
has failed to identify such basis. Accordingly, this court lacks subject matter

8

jurisdiction over the complaint, and Manna Ministry’s motion to remand is
granted.
III.

Attorneys’ Fees
Manna Ministry also moves for payment of just costs and actual expense

that it incurred as a result of the Adrians’ attempted removal, including
attorneys’ fees pursuant to Rule 11 of the Federal Rules of Civil Procedure and
28 U.S.C. § 1447(c).
Rule 11 of the Federal Rules of Civil Procedure provides that attorneys’
fees and costs may be awarded as a sanction against a party. Manna Ministry
does not identify the specific basis for a sanction of costs, actual expenses, and
attorneys’ fees under Rule 11, so the court will presume it seeks sanctions for a
violation of Rule 11(b)(2) by the Adrians. See Docket 7, Motion to Remand to
State Court and Request for Judicial Notice (“[The] Adrians’ removal papers
affirmatively show that the attempted removal is defective and improper.”).
Rule 11(b)(2) provides that: “By presenting to the court a . . . written motion
. . . an . . . unrepresented party certifies that to the best of the person’s
knowledge, information, and belief . . . the claims, defenses, and other legal
contentions are warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law.”
Fed. R. Civ. P. 11(b)(2) (emphasis added). Even though the Adrians are pro se
litigants, they can be sanctioned under Rule 11. Carman v. Treat, 7 F.3d 1379,

9

1381-82 (8th Cir. 1993). But Manna Ministry has failed to comply with the
procedural requirements in Rule 11.
“A motion for sanctions must be made separately from any other motion
and must describe the specific conduct that allegedly violates Rule 11(b).” Fed.
R. Civ. P. 11(c)(2). Manna Ministry did not separately move for sanctions, but
combined its motion with its motion for summary remand, request for judicial
notice, and motion for costs and attorneys’ fees pursuant to § 1447(c). Nor did
Manna Ministry describe any specific conduct by the Adrians that violates
Rule 11. Because Manna Ministry included its request for Rule 11 sanctions in
its prayer for relief in another motion, the Adrians have not been afforded the
benefit of the procedural requirements of Rule 11. See Gordon v. Unifund CCR
Partners, 345 F.3d 1028, 1029 (8th Cir. 2003) (holding that award of sanctions
was an abuse of discretion where party’s request for sanctions was not made
separately from other motions and requests and the party did not serve a
prepared motion on the other party prior to making a request for sanctions to
the court). Thus, Manna Ministry’s request for sanctions under Rule 11 is
denied because of its failure to comply with Rule 11's procedural requirements.
Manna Ministry also seeks costs under 28 U.S.C. § 1147. Section 1147(c)
provides that, upon a finding that removal was improper, the court may order
the payment of just costs, including attorneys’ fees. The Supreme Court has
held that “the standard for awarding fees should turn on the reasonableness of

10

the removal. Absent unusual circumstances, courts may award attorney's fees
under § 1447(c) only where the removing party lacked an objectively reasonable
basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). The objective of this provision is to “deter removals sought for the
purpose of prolonging litigation and imposing costs on the opposing party,” not
to discourage defendants from seeking removal in all but the most obvious
cases. Id. at 140.
The Eighth Circuit Court of Appeals has observed that pro se litigants
often lack the capacity to recognize the legal merits of their claims. “Pro se
[litigants] cannot simply be assumed to have the same ability as a [party]
represented by counsel to recognize the objective merit or lack of merit of a
claim.” Chester v. St. Louis Hous. Auth., 873 F.2d 207, 209 (8th Cir. 1989)
(citing Miller v. Los Angeles Cnty. Bd. of Educ., 827 F.2d 617, 620 (9th Cir.
1987)). In Chester, the Eighth Circuit Court of Appeals reversed an award of
attorneys’ fees against a pro se plaintiff under Title VII. The court noted that
under Title VII, a prevailing defendant may be awarded attorneys’ fees only
“upon a finding that the plaintiff’s action was frivolous, unreasonable, or
without foundation, even though not brought in subjective bad faith.” Id. at
209 (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417 (1978)).
Although the district court found the pro se plaintiff’s claim was without merit,
the Eighth Circuit reversed its award of attorneys’ fees in part because the

11

court did not consider the plaintiff’s status as a pro se litigant. Id. The same
policy considerations apply here. While the Adrians may have lacked an
“objectively reasonable basis for seeking removal,” they cannot be expected to
evaluate the merits of their legal contentions as effectively as represented
parties. Manna Ministry has not alleged that the Adrians acted in bad faith in
seeking to remove the action or that they sought to prolong the litigation or
increase the costs of Manna Ministry. Finally, other district courts have
recognized the importance of a removal petitioner’s pro se status in evaluating
requests for costs under § 1447(c). See City of Superior v. Anderson, No.
5-95-290, 1995 WL 861008 at *2 (D. Minn. Dec. 18, 1995) (finding that the
award of costs under § 1447(c) would be imprudent because of defendant's pro
se status); Anderson v. State of Neb., 530 F. Supp. 19, 22 (D. Neb. 1981)
(same). Thus, the award of costs is not appropriate under § 1447(c) and Manna
Ministry’s motion is denied.
IV.

Motion for Leave to File Third-Party Complaint
The final matter for disposition is the Adrians’ motion for leave to file a

third-party complaint. The Adrians’ proposed third-party complaint is 18 pages
long and purports to sue a number of defendants, including Cadwell, Sanford,
Deibert, and Garry, LLP, the law firm representing Manna Ministry and Circuit
Judge Larry Long, who presided over the underlying state court action. The

12

third-party complaint also adds Raymond Ehrman as a third-party plaintiff.
Manna Ministry opposes the motion.
As previously discussed, this court lacks subject matter jurisdiction over
the present action. Accordingly, the Adrians’ motion for leave to file a thirdparty complaint is denied. Therefore, it is
ORDERED that Manna Ministry’s request for judicial notice (Docket 7) is
granted pursuant to Rule 201 of the Federal Rules of Evidence.
IT IS FURTHER ORDERED that Manna Ministry’s motion to remand to
state court (Docket 7) is granted pursuant to 28 U.S.C. §§ 1446(c)(4), 1447(c).
Manna Ministry’s motion for the payment of just costs, expenses, and
attorneys’ fees (Docket 7) is denied pursuant to Rule 11 of the Federal Rules of
Civil Procedure and 28 U.S.C. § 1447(c).
IT IS FURTHER ORDERED that the Adrians’ motion for leave to file a
third-party complaint (Docket 11) is denied.
Dated January 23, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

13