The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING MOTION FOR SUMMARY REMAND
Defendants, Kevin and Esther Myers (the Myerses), filed a pro se notice of removal of a state court action to federal court on March 23, 2012. Plaintiff, Manna Ministry Center (Manna Ministry), 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 also asks this court to take judicial notice pursuant to Rule 201 of the Federal Rules of Evidence of the file in a related state court action in the Second Judicial Circuit, Lincoln County, bearing the caption Manna Ministry Center v. Jerry and Sonja Adrian, Civ. 11-647. This court previously remanded that action to state court. See Manna Ministry Center v. Adrian, 2012 WL 195522 (D.S.D. January 23, 2012).
The present action is related to a forcible entry and detainer suit filed pursuant to South Dakota law that arose in the wake of a dispute over a parcel of property in Lincoln County, South Dakota. Manna Ministry filed suit against Jerry and Sonja Adrian. After a judgment was entered in state court, the Adrians attempted to remove the action to federal court. See Manna Ministry, 2012 WL 195522.
During the pendency of the Adrian removal proceedings, and while Manna Ministry was thereby stayed from enforcing the judgment, the Adrians allowed Kevin and Esther Myers to have possession of a house on Manna Ministry's property. Manna Ministry commenced a new state court action to evict the Myerses on February 29, 2012. The Myerses filed their answer on March 5, 2012. Manna Ministry moved for judgment on the pleadings or alternatively for summary judgment, request for judicial notice and for expedited special execution. On March 22, 2012, after the state court heard argument on the motion from both parties, it entered an order and judgment granting Manna Ministry's motion. See Docket 4-1, 4-2, 4-3. On March 23, 2012, the day after final judgment had been entered in state court, the Myerses removed the suit to this court on the basis of federal jurisdiction purportedly based on the original U.S. Land Patent grant.
Manna Ministry requests that this court take judicial notice pursuant to Rule 201 of the Federal Rules of Evidence of the file in the related 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). The state court file is relevant for several reasons. During the pendency of that removal proceeding, Manna Ministry was stayed from evicting the Adrians. That created an opportunity for the Myerses to take possession of the subject property with the assistance of the Adrians. Further, various defenses the Myerses invoked in the underlying state action are predicated on theories of title and ownership that were refuted in the prior state action. The Myerses essentially regurgitate arguments made by Adrians in the previous proceeding. Thus, the Adrians' removal proceeding is relevant to the current proceeding because it places this dispute in its appropriate factual context. Consequently, Manna Ministry's request for this court to take judicial notice of the state court action is granted.
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."). The subject matter jurisdiction of this court may derive from the citizenship of the parties, see 28 U.S.C. § 1332, a federal question posed by the underlying lawsuit, see 28 U.S.C. § 1331, or special circumstances covered by federal statute. Because the parties are both citizens of South Dakota and none of the statutory grounds for removal apply, this action is removable only upon a showing that "federal question" jurisdiction exists, as set forth in § 1441(b).
Manna Ministry seeks a summary remand to state court pursuant to 28 U.S.C. § 1446(c)(4) or a remand order pursuant to 28 U.S.C. § 1447(c). Section 1446(c)(4) directs this court to examine a notice of removal and "[i]f it appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." Manna Ministry argues that remand to state court is appropriate under this section because removal to federal court after a judgment has been issued in state court is improper. Section 1447(c) requires a district court to remand a case to state court "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." Manna Ministry argues that remand is required under this section because the Myerses' stated basis for removal does not "arise under" federal law.
I. Removal After Judgment has been Issued is Improper.
Manna Ministry argues that the case should be remanded pursuant to § 1446(c)(4) because removal to federal court after a judgment has been issued in state court is improper. The entry of judgment in state court precludes removal to federal court. See Ohio v. Doe, 433 F.3d 502, 506 (6th Cir. 2006) (holding district court erred in denying motion to remand because final judgment had been entered in state court and issuance of a new subpoena was not a second action that was removable); Mestice v. McShea, 201 F.2d 363 (3d Cir. 1953) (holding that removal to federal court after the entry of final judgment in a state court action was improper); see also Thorp Finance Corp. v. Lehrer, 587 F. Supp. 533, 534 (E.D. Wis. 1984) ("[A] case may not be removed from a state court to a federal court after the state court enters a final judgment that terminates the litigation.") (citing Mestice, 201 F.2d at 364); 14B Charles Alan Wright et. al., Federal Practice and Procedure: Jurisdiction § 37221 (4th ed. 2012) ("[D]efendants may not remove a case from a state court to a federal court after the state court has entered a final judgment that terminates the litigation."). As the Court of Appeals for the Second Circuit observed in Four Keys Leasing & Maintenance Corp. v. Simithis, 849 F.2d 770, 774 (2d Cir. 1988), "it would be a perversion of the removal process to allow a litigant who is subject to a final judgment to remove that final judgment to the federal courts for further litigation."
Although this is an issue of first impression in the Eighth Circuit, the court considered a similar sequence of events, albeit under much different circumstances, in Dewey v. Lutz, 930 F.2d 597 (8th Cir. 1991). There, the FDIC took over a failed bank and attempted to remove a suit in which the bank was listed as one of three defendants after the suit had gone to trial and plaintiffs had obtained a judgment. The case was on appeal before the North Dakota Supreme Court when the FDIC sought removal pursuant to 12 U.S.C. §§ 1819(b)(1), (b)(2)(A), and (b)(2)(B). The district court denied removal and remanded the case back to state court. The Eighth Circuit affirmed on other grounds, concluding that the plaintiffs had abandoned their claim against ...