Secretary of Veterans Affairs v. Hill et al

Filing 8

MEMORANDUM DECISION/ ORDER TO SHOW CAUSE- Plaintiff is hereby ORDERED to show cause why this action should not be remanded to the Utah State Court. Plaintiff's response is due within 10 days of the date of this Order. If any other parties wish to respond, they may do so 10 days after Plaintiff files its response. Signed by Judge Clark Waddoups on 3/14/2011. (rlr)

Secretary of Veterans Affairs v. Hill et al

Doc. 8

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

THE SECRETARY OF VETERANS AFFAIRS, AN OFFICER OF THE UNITED STATES OF AMERICA, C/O DIRECTOR OF THE VA REGIONAL OFFICE, a foreign corporation, Plaintiff, ORDER and MEMORANDUM DECISION

vs.

LEVI HILL and REBECCA G. HILL, a married couple, Defendants, vs. COUNTRYWIDE HOME LOANS, INC., a New York Corporation, et al., Third Party Defendants.

Case No. 2:11-cv-232 CW

This court "must, sua sponte, satisfy itself of its power to adjudicate in every case and at every stage of the proceedings." State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269, 1270-71 (10th Cir. 1998). Here, Plaintiff has attempted to remove an unlawful detainer action that Plaintiff brought under Utah state law and that Plaintiff filed in Utah state court. The first obvious problem with Plaintiff's notice is that 28 U.S.C. § 1441 only allows

Dockets.Justia.com

"the defendant" to remove an action from state court. Plaintiff is the plaintiff in the Utah action. That Plaintiff is a counterclaim defendant in the Utah state action appears to be immaterial. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106 (1941) (removal statute does not allow removal by plaintiffs in the state court action, even if they are countersued). Moreover, Plaintiff alleges that there is diversity in the action. While Plaintiff admits (albeit implicitly and not expressly) that one of the third party counterclaim defendants is nondiverse, Plaintiff argues that this invividual's presence should be ignored because the counterclaims against him are without merit. At this point, Plaintiff's assertion is nothing more than a legal conclusion. For these reasons, Plaintiff is hereby ORDERED to show cause why this action should not be remanded to Utah state court. Plaintiff's response is due within 10 days of the date of this Order. If any other parties wish to respond, they may do so 10 days after Plaintiff files its response. SO ORDERED this 14th day of March, 2011. BY THE COURT:

_______________________________________ Clark Waddoups United States District Judge

-2-