United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
C.H. Guenther and Son, Inc. (“C.H. Guenther”) and
Fidelity Investments(“Fidelity”) filed a Notice of
Removal on September 5, 2017, removing this action from the
District Court of Wyandotte County, Kansas. Docs. 1 at 1
& 1-1, Doc. 6. Defendants describe the state court action
as one seeking “federal mandamus relief under 28 U.S.C.
§ 1651.” Doc. 1 at 1. According to that Petition
filed in state court, plaintiff Jose Cesar Camacho seeks a
writ of mandamus to compel defendants to answer
interrogatories. The Petition also asserts that he served
these interrogatories under Federal Rule of Civil Procedure
33. Doc. 1-1 at 10, 25. These interrogatories ask defendants
to produce a valid warrant authorizing them to seize
plaintiff's wages and other assets in connection with
child support payments. Id. Without a warrant,
plaintiff argues, defendants are seizing his property in
violation of the Fourth Amendment. Id.
week after filing the Notice of Removal, defendant C.H.
Guenther filed a Motion to Dismiss. See Docs. 1, 8.
This motion asserts that our court lacks subject matter
jurisdiction over the case that C.H. Guenther-along with
Fidelity-removed to federal court. Doc. 9 at 1. The next day,
the court issued a show cause order, ordering the parties to
show cause, in writing, why it should not remand this case
back to state court. Doc. 10. Defendants responded one week
later, asking the court to dismiss the case rather than
remand it. Doc. 13 (Fidelity's response) at 2; see
also Doc. 14 at 1 (C.H. Guenther's response)
(adopting Fidelity's response in full). That same day,
Fidelity filed its own Motion to Dismiss, arguing that (1)
the court lacked subject matter jurisdiction, (2) the
Petition failed to state a claim for relief, and (3) the
contract between Fidelity and plaintiff required them to
arbitrate disputes with one another. Nearly a month later,
plaintiff responded, largely reasserting the claims he made
in his Petition. See Doc. 15.
defendant in a state court civil action may remove the case
to federal court if the plaintiff originally could have filed
the action in federal court. 28 U.S.C. § 1441(a);
see also Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987) (“Only state-court actions that originally
could have been filed in federal court may be removed to
federal court by the defendant.”). “‘This
jurisdictional prerequisite to removal is an absolute,
non-waivable requirement.'” Hunt v. Lamb,
427 F.3d 725, 726 (10th Cir. 2005) (quoting Brown v.
Francis, 75 F.3d 860, 864 (3d Cir. 1996)). “If at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c).
court recognizes that it must construe plaintiff's
filings liberally because he proceeds pro se. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Yet, even
under the most liberal construction it can muster, the court
cannot decipher any basis for this court to have subject
matter jurisdiction over the claims asserted by
plaintiff's state court filings. So, the court must
remand this action back to state court.
courts have original jurisdiction “of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. This is commonly
called federal question jurisdiction. Arbaugh v. Y&H
Corp., 546 U.S. 500, 513 (2006).
plaintiff has filed something he calls “Notices to
Court of a Writ of Mandamus” that seeks, it appears, to
compel defendants to comply with plaintiff's
interrogatories. Doc. 1-1 at 10, 25. Construing
plaintiff's “writs” liberally, plaintiff
appears to assert that 28 U.S.C. § 1651 gives the court
authority to compel defendants to comply with Fed.R.Civ.P. 33
and answer his interrogatories. Doc. 1-1 at 11-12; 25-26.
This is not a right plaintiff can assert. See McKenzie v.
U.S. Citizenship & Immigration Servs., Dist. Dir.,
761 F.3d 1149, 1156-57 (10th Cir. 2014) (holding that no
federal question jurisdiction existed when plaintiff asserted
a right under a federal statute that did not create a private
right of action). A party can serve interrogatories under
Rule 33 only if he has commenced a civil lawsuit in federal
court. See Fed. R. Civ. P. 1 (“These rules
govern the procedure in all civil actions and proceedings in
the United States district courts . . . .”). Since
plaintiff filed no civil action before he served his
interrogatories, plaintiff cannot serve them under the banner
of the Federal Rules of Civil Procedure.
does Title 28 U.S.C. § 1651 confer subject matter
jurisdiction on this court. See United States v.
Denedo, 556 U.S. 904, 913 (2009) (“[T]he All Writs
Act and the extraordinary relief the statute authorizes are
not a source of subject-matter jurisdiction.”).
Instead, a district court can issue writs of mandamus only to
aid its jurisdiction. 28 U.S.C. § 1651. Since the
underlying controversy pleaded by plaintiff's Petition
does not provide a basis for subject matter to exist, a writ
cannot aid the court's non-existent jurisdiction.
Plaintiff's filing in state court presents no federal
Fidelity's response to the court's Show Cause
Order-which C.H. Guenther adopts, see Doc.
14-Fidelity argues that the court should dismiss this case on
the merits instead of remanding it because a state court
would dismiss this case inevitably, citing Advocates for
Individuals with Disabilities Foundation Inc. v. Russell
Enterprises Inc., No. CV-16-2380-PHX-JAT, 2016 WL
7187931 (D. Ariz. Dec. 12, 2016). Doc. 13 at 2.
Russell does not assist defendants' request. In
Russell, plaintiff had filed an action in Arizona
state court, alleging violations of the Americans with
Disabilities Act (“ADA”) and Arizona's state
law equivalent of the ADA. Id. at *1. Defendant then
removed the case to federal court. Id. Once in
federal court, defendant moved to dismiss the case for lack
of subject matter jurisdiction or, alternatively, for failing
to state a claim. Id. Defendant argued that the
federal court lacked subject matter jurisdiction because the
plaintiff had no standing to bring either claim. Id.
Plaintiff acknowledged that it lacked standing, but argued
that the court should remand the case, rather than dismissing
it. Id. Defendant argued that the court should not
remand the case, and instead dismiss the case, because the
state court would dismiss the case inevitably. Id.
court remanded the state law claim but dismissed the federal
claim. Id. at *2-3. The court explained that Arizona
state courts generally apply the same standing principles as
federal courts, but allow plaintiffs to proceed without
Article III standing in certain circumstances. Id.
at *2. The court concluded that the Arizona state court
should decide whether it would waive the standing requirement
for plaintiff's state law claim. Id. at *3. But
the court dismissed the federal law claim because the court
concluded that a state court could not entertain a federal
claim that a federal court could not hear because the
plaintiff lacked Article III standing. Id.
the Petition alleges no federal controversy. So, like
Russell, the court must allow a state court to
decide whether this Petition states a claim under state law.
See Id. at *3 (remanding a state law claim so that a
state court could decide if it would waive standing
also cite Wolff v. United States, 76 Fed.Appx. 867,
870 (10th Cir. 2003), as an example that the Tenth Circuit
has approved dismissing a removed case rather than remanding
it. Doc. 13 at 4. But in Wolff, the Circuit held
that the district court lacked subject matter jurisdiction
because the United States' sovereign immunity barred the
suit. 76 Fed.Appx. at 869. And because sovereign immunity
barred the suit against the United States no matter where it
was filed, the Circuit affirmed the district court's
decision to dismiss the case. Id. Since sovereign
immunity protects neither defendant here, Wolff does
the court concludes it has no subject matter jurisdiction
over this matter. So, the court follows § 1447(c)'s
mandate and remands the case back to state court.
IS THEREFORE ORDERED BY THE COURT THAT this case is
remanded to state court. All other ...