Rodrigues v. Rodrigues

Filing 12

MEMORANDUM DECISION AND ORDER granting 3 Motion to Remand to State Court. The court immediately remands this divorce petition to the Third Judicial District Court of Utah as case number 174907638 before Judge Kara Pettit. The court denies as moot the following motions; 4 David Rodriguess motions to change venue, 5 Motion to arrest judgment, 6 Motion for alternative dispute resolution, 7 Motion appear by means of teleconference. The court awards Luz Rodrigues her reasonable attorney fees and costs associated with her motion to remand the case. The court shall retain jurisdiction for the limited purpose of determining the amount of fees to award. Luz Rodrigues shall file a memorandum requesting the attorney fe es and costs sought by July 9, 2018. David Rodrigues shall file a response by August 6, 2018. The court shall fix the amount of the award based upon the briefs. No oral argument will be held. Signed by Judge Jill N. Parrish on 6/25/2018. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
LUZ ENEIDA RODRIGUES,
Petitioner,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
REMAND

v.
Case No. 2:18-cv-00394-JNP
DAVID LEROY RODRIGUES,
District Judge Jill N. Parrish
Respondent.

Luz Rodrigues filed a petition for divorce in Utah state court on or around December 14,
2017. Her husband, David Rodrigues, received service of the petition on December 26, 2017.
On April 17, 2018, a judge granted a bifurcated decree of divorce. On May 21, 2018, David filed
a notice of removal of the divorce proceedings from state court to this court based upon diversity
of citizenship between the parties. See 28 U.S.C § 1332(a).
Before the court is a motion filed by Luz to remand the case to state court. [Docket 3].
David did not file a timely response. The court GRANTS the motion for two reasons.
First, David filed his notice of removal late. “The notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such
action or proceeding is based . . . .” 28 U.S.C. § 1446(b). This time limit is mandatory, and
absent waiver by the party seeking remand, requires a remand to state court. Adams v. W. Steel
Buildings, Inc., 296 F. Supp. 759, 761 (D. Colo. 1969). Because David missed the thirty-day
deadline for removal by several months, a remand is required.

Second, this court has no jurisdiction to hear divorce petitions based upon diversity of
citizenship. Barber v. Barber, 62 U.S. (21 How.) 582, 583 (1858) (“This court disclaims
altogether any jurisdiction in the courts of the United States upon the subject of divorce or for the
allowance of alimony . . . .”); 13E CHARLES ALAN WRIGHT

ET AL.,

FEDERAL PRACTICE

AND

PROCEDURE § 3609 (3d ed. 2009). Absent subject matter jurisdiction over this case, the court
must remand the case to state court. See 28 U.S.C. § 1447(c) (“If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”).
Finally, Luz asks this court to award her attorney fees pursuant to 28 U.S.C. § 1447(c),
which provides: “An order remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of 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, 136 (2005). Here, attorney fees are warranted because there was no reasonable
basis for removal. David missed the mandatory thirty-deadline for removal by almost four
months. Additionally, there is a categorical rule against removal of divorce cases based upon
diversity of citizenship. Moreover, by waiting until after the state court granted the petition of
divorce and awarded assets to Luz, it appears that David has attempted to thwart a lawful
judgment of a state court by depriving that court of jurisdiction to enforce its orders. For this
additional reason, attorney fees are warranted in this case.
ORDER OF THE COURT
The court, therefore, ORDERS the following:

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(1) The court GRANTS Luz Rodrigues’s motion to remand the case to state court.
[Docket 3]. The court immediately remands this divorce petition to the Third Judicial
District Court of Utah as case number 174907638 before Judge Kara Pettit.
(2) Any further removal of the state court action, Case No. 174907638, by David
Rodrigues will have no force or effect and shall be deemed void.
(3) The court awards Luz Rodrigues her reasonable attorney fees and costs associated
with her motion to remand the case. The court shall retain jurisdiction for the limited
purpose of determining the amount of fees to award. Luz Rodrigues shall file a
memorandum requesting the attorney fees and costs sought by July 9, 2018. David
Rodrigues shall file a response by August 6, 2018. The court shall fix the amount of
the award based upon the briefs. No oral argument will be held.
(4) The court DENIES AS MOOT David Rodrigues’s motions to change venue [Docket
4], to arrest judgment [Docket 5], for alternative dispute resolution [Docket 6], and to
appear by means of teleconference [Docket 7].
Signed June 25, 2018.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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