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Manna Ministry Center, A South Dakota Nonprofit Corporation v. Jerry & Sonja Adrian

January 23, 2012

MANNA MINISTRY CENTER, A SOUTH DAKOTA NONPROFIT CORPORATION, PLAINTIFF,
v.
JERRY & SONJA ADRIAN,
DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

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 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.").

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.*fn1

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.*fn2 Thus, assuming that the complaint stated a federal issue that would have provided a basis for 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 ...


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