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Jerome Adrian and Sonja Adrian v. Manna Ministry Center )(Fraudulent

July 31, 2012

JEROME ADRIAN AND SONJA ADRIAN, PLAINTIFFS,
v.
MANNA MINISTRY CENTER )(FRAUDULENT); HOPE COMMUNITY CHURCH; NEW HAVEN; ALL OCCUPANTS; CADWELL, SANFORD DEIBERT & GARRY LLP;
50 JOHN & JANE DOES; LINCOLN COUNTY (SHERIFF, REGISTER OF DEEDS, CLERK OF COURT; KEVIN MYERS; AND ESTHER MYERS, DEFENDANTS.



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

ORDER GRANTING MOTION FOR SUMMARY REMAND AND FOR PAYMENT OF COSTS

Plaintiffs, Jerome Adrian and Sonja Adrian (the Adrians), filed a pro se notice of removal of a state court action to federal court on March 30, 2012. Defendants Manna Ministry Center and New Haven (Manna Ministry) move to remand this case to state court. Defendants Hope Community Church and Cadwell, Sanford, Deibert, & Garry LLP join in this motion. The Adrians oppose Manna Ministry's motion for remand.

FACTUAL BACKGROUND

The present case is a continuation of a property dispute between the Adrians and Manna Ministry. The Adrians previously sought to remove a forcible entry and detainer suit brought pursuant to South Dakota law that arose in the wake of a dispute over a parcel of property in Lincoln County, South Dakota. After the circuit court granted judgment in favor of Manna Ministry, the Adrians filed a notice of removal. This court granted Manna Ministry's motion for summary remand in that case on January 23, 2011. See Civ. 11-4145-KES, Docket 14.

On March 15, 2012, the Adrians filed a "complaint to quit trespass and to support of crime and to pay damages" in state court. Docket 1-1. The complaint asserted that Jerome and Sonja Adrian were lawful owners of the property in Lincoln County, South Dakota, and alleged that defendants "unlawfully dispossessed" them from their property based on a fraudulent writ. Docket 1-1 at ¶ 1. On March 30, 2012, the Adrians filed a notice of removal to this court.

DISCUSSION

I. Defendants' 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 § 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. A Plaintiff May Not Remove a Case to Federal Court.

Under 28 U.S.C. §§ 1441 and 1446, a state court action may be removed to federal court only by a defendant. Section 1441 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 . . . [.]" (emphasis added). Section 1446(a) provides that "[a] defendant or defendants desiring to remove any civil action from a state court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal[.]" (emphasis added). Thus, the plain language of the statute demonstrates that a plaintiff may not remove his own commenced state court action to federal court. Thus, Manna Ministry is entitled to a summary remand.

B. This Court Lacks Subject Matter Jurisdiction.

Manna Ministry argues that removal to federal court was improper because the stated basis for removal does not "arise under" federal law. "A defendant generally is required to cite the proper statutory basis for removal and to allege facts from which a district court may determine whether removal jurisdiction exists." Pet Quarters, Inc. v. Depository Trust & Clearing Co., 559 F.3d 772, 778 (8th Cir. 2009). 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 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).

"Removal based on federal question jurisdiction is governed by the well pleaded complaint rule: jurisdiction is established only if a federal question is presented on the face of the plaintiff's properly pleaded complaint." Pet Quarters, 559 F.3d at 779. The complaint here raises no issues of federal law. Nor does adjudication of the only state-law claim "turn on a federal constitutional or other important federal question." Id. (citing Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808-09 (1986)). Thus, subject matter jurisdiction is not predicated on 28 U.S.C. § 1441(b), the language of which tracks the "arising under" statute, 28 U.S.C. § 1331.

The Adrians' basis for removal is a federal land patent. But courts have universally held that a federal land patent is an insufficient basis for federal jurisdiction. See, e.g., Oneida Indian Nation of N.Y. v. Oneida County, N.Y., 414 U.S. 661, 676-77 (1974) ("Once patent issues, the incidents of ownership are, for the most part, matters of local property law to be vindicated in local courts, and in such situations it is normally insufficient for 'arising under' jurisdiction merely to allege that ownership or possession is claimed under a United States patent."); Corrigan v. Leclair, 206 Fed. App'x 771, 773 (10th Cir. 2006) ("Because [plaintiff's] complaint asserts no basis for federal jurisdiction other than the fact his land was obtained via a federal land patent, the district court clearly lacked subject matter jurisdiction over his claims[.]"); Virgin v. Cnty. of San Luis Obispo, 201 F.3d 1141, 1143 (9th Cir. 2000) ("Federal land ...


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