United States District Court, D. Kansas
DAVID O. ALEGRIA, Plaintiff,
DAVID SEAN PROCTOR, and SUSAN LEIGH PROCTOR Defendants.
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
7, 2019, the plaintiff David O. Alegria
(“Alegria”) filed an opening pleading entitled,
“Notice of Removal, pursuant to 28 U.S.C. 1441(a),
Petition for Writ of Habeas Corpus, and Emergency Motion for
Return of Child.” ECF# 2. The plaintiff Alegria alleges he
is “legal custodian, father by estoppel and de factor
father” of a minor child who is the subject of an
adoption proceeding pending in Shawnee County District Court.
ECF# 2, p. 1-2. He also attaches a state court order that
grants temporary custody of the minor child to the
defendants, David Sean Proctor and Susan Leigh Proctor, the
adoptive couple and petitioners in the state adoption
proceeding. ECF# 2-3. Alegria alleges his legal connection
and familial ties to the minor child and asserts what is in
the best interest of the child. Alegria argues that Kansas
law establishes his ongoing custodial rights and “de
facto adoption” of the minor child and that his
substantive due process rights and equal protection rights
were violated by the “ex parte” order granting
temporary custody to the petitioners. ECF# 2. Alegria
separately files a pleading entitled, “Notice of
Removal, ” to which he attaches the temporary custody
order and state notice of hearing. ECF## 3 and 3-1
removal jurisdiction is statutory in nature, and the
governing statutes are to be strictly construed. Shamrock
Oil & Gas v. Sheets, 313 U.S. 100, 108-09 (1941);
see Merrell Dow Pharmaceuticals, Inc. v. Thompson,
478 U.S. 804, 814 (1986). “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). Section 1441(a) provides that,
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or defendants,
. . . .” Section 1446 which governs the procedure for
removal provides that, “A defendant or defendants
desiring to remove any civil action form a State court shall
file in the district court of the United States . . .
.” 28 U.S.C. § 1446(a). Alegria has not attached a
copy of the state “initial pleading setting forth the
claim for relief upon which such action or proceeding is
based.” 28 U.S.C. § 1446(a) and (b). There is no
pleading showing him to be a defendant in the state
proceeding and no basis for believing he was named as a
defendant such that he even qualifies as a party entitled to
is proper only if this court would have had original
jurisdiction. 28 U.S.C. § 1441(a). The Tenth Circuit has
squarely held that there is no removal jurisdiction over a
state child custody proceeding:
Under 28 U.S.C. § 1441(a), a defendant in a state court
civil action may remove the action to federal court if the
federal court has original jurisdiction over the action. In
other words, removal is reserved for those cases “that
originally could have been filed in federal court.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107
S.Ct. 2425, 96 L.Ed.2d 318 (1987). “This jurisdictional
prerequisite to removal is an absolute, non-waivable
requirement.” Brown v. Francis, 75 F.3d 860,
864 (3d Cir.1996).
Here, the underlying state court civil action involved child
custody. Because Lamb could not have initiated this action in
federal court, Hunt could not remove it to federal court. It
is well-established that federal courts lack jurisdiction
over “‘[t]he whole subject of the domestic
relations of husband and wife, [and] parent and
child.'” Ankenbrandt v. Richards, 504 U.S.
689, 703, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) (quoting
In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34
L.Ed. 500 (1890) (first alteration in original)); see also 28
U.S.C. § 1331 (giving district courts original
jurisdiction over “civil actions arising under the
Constitution, laws, or treaties of the United States”).
As the district court lacked jurisdiction over Hunt and
Lamb's child custody dispute, it was required by 28
U.S.C. § 1447(c) to remand the action to state court.
Hunt v. Lamb, 427 F.3d 725, 726-27 (10th Cir. 2005).
“A defense that raises a federal question is inadequate
to confer federal jurisdiction.” Merrell Dow Pharm.
Inc. v. Thompson, 478 U.S. 804, 808 (1986). Similarly,
this court has been affirmed by the Tenth Circuit that no
removal jurisdiction exists over a state adoption proceeding.
In re Adoption of Baby C, 323 F.Supp.2d 1082 (D.
Kan. 2004), aff'd, 138 Fed.Appx. 81 (10th Cir.
Jun. 10, 2005). The Tenth Circuit held:
Second, and equally fatal, the underlying state court
adoption case did not state a federal question on the face of
the plaintiff's properly pleaded complaint; here the
adoptive parents' petition for adoption. Adoption is
quintessentially a state law issue and all of the Price's
claims in federal court constitute putative defenses or
counterclaims to the adoption based on federal law. . . .
This is precisely the type of case that is meant to be
excluded from removal by the properly pleaded plaintiff's
complaint rule articulated in Caterpillar. Thus, the
district court lacked subject-matter jurisdiction and was
correct to remand the cases to state court based on
procedural defects and lack of jurisdiction.
Baby C v. Price, 138 Fed.Appx. 81, 84 (10th Cir.
no subject matter jurisdiction of this case, the court shall
not address any other pending matters and arguments and
promptly dismisses the action without prejudice for lack of
subject matter jurisdiction and orders its remand to state
THEREFORE ORDERED that this action is subject to immediate
dismissal without prejudice for lack of subject matter
jurisdiction and the No. 2019-AD-000068 from the District of
Shawnee County, Kansas is remanded, and the Clerk of the
Court is directed to mail a certified copy of this order to
the clerk of that district court.
 The court construes this pleading as
seeking federal jurisdiction only under the federal removal
statutes discussed later. On the docket sheet prepared by
Alegria, who is an attorney, he checked the origin of this
action as only “Removed from State Court.” ECF#
1. Even if he had filed his pleading as an original action,
it would still be subject to immediate dismissal for lack of
subject matter jurisdiction. See Winters v. Kansas Dept.
of Social and Rehabilitation Services, 2011 WL ...