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Forrence v. Koch

United States District Court, D. New Hampshire

July 9, 2018

Kenneth Forrence et al.
v.
Paul Koch and Acquvest, Inc.

          ORDER

          LANDYA MCCAFFERTY UNITED STATES DISTRICT JUDGE

         Plaintiffs Kenneth and Diana Forrence brought suit in Hillsborough County Superior Court, Southern District against defendants Paul Koch and Acquvest, Inc., seeking to quiet title to a parcel of land and requesting that the court order Koch to remove items stored on the property. On February 9, 2018, Koch removed the case to this court. In his notice of removal, Koch asserted both diversity jurisdiction and federal question jurisdiction based on several federal statutes and constitutional amendments. See doc. no. 1.

         On May 10, 2018, Koch filed a "notice of bankruptcy stay in effect." See doc. no. 14. In that notice, Koch states that his estranged wife has filed for bankruptcy in Connecticut, and that he believes this matter should be stayed in light of her bankruptcy filing. The court construed Koch's notice as a motion to stay the case and directed plaintiffs to respond.

         In their response (doc. no. 15), plaintiffs addressed numerous issues and made several arguments, including: 1) the motion to stay is without merit, 2) default was entered against Koch in superior court prior to Koch removing the case to this court and, most importantly, 3) the court lacks subject matter jurisdiction and the case should be remanded back to superior court.

         In light of plaintiffs' challenge to the court's subject matter jurisdiction, the court directed Koch to "file a memorandum with any supporting materials demonstrating that the court has subject matter jurisdiction." Doc. no. 16 at 2. The court also noted that if "Koch fails to file his memorandum, the court will determine the existence of subject matter jurisdiction based on the parties' current filings." Id. Koch has since filed his memorandum. See doc. no. 17.

         STANDARD OF REVIEW

         A removed case must be remanded to state court if the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). Federal courts have federal question jurisdiction when an action arises "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Federal courts have diversity jurisdiction under 28 U.S.C. § 1332(a) when the parties are citizens of different states and "the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs." § 1332(a). In the context of disputes over removal jurisdiction, it is the removing defendant's burden to show that removal was proper. See Fayard v. Northeast Vehicle Servs., LLC, 533 F.3d 42, 48 (1st Cir. 2008); see also Acosta-Ramirez v. Banco Popular de P.R., 712 F.3d 14, 20 (1st Cir. 2013) .

         DISCUSSION

         In his memorandum, Koch does not attempt to establish the existence of federal question or diversity jurisdiction. To the contrary, he argues that his wife's bankruptcy filing "removed jurisdiction from this court" until that case is closed. Doc. no. 17 at 2.

         Koch is incorrect. Even if Koch's wife's bankruptcy filing would give rise to an automatic stay, the "court necessarily has the jurisdiction to determine whether it has subject matter jurisdiction over the case or controversy before it." In re Hawkins, 340 B.R. 642, 646 (Bankr. D.D.C. 2006) (noting that a federal court may make a threshold determination of its subject matter jurisdiction even when an automatic stay is in effect); Pennsylvania v. Tap Pharm. Prod., Inc., 415 F.Supp.2d 516, 521 (E.D. Pa. 2005) (holding that the court's determination that a proceeding should be stayed "is subject to an important limitation: the existence of subject matter jurisdiction"). Thus, the court must determine whether it has subject matter jurisdiction prior to addressing the parties' arguments concerning whether a stay of the proceedings is warranted.

         I. Federal Question Jurisdiction

         Plaintiffs' complaint does not assert claims under the Constitution, laws, or treaties of the United States. In his notice of removal, Koch states:

Removal is based on grounds of . . . federal question under 28 U.S.C. § 1331, 28 U.S.C. § 1441, and including 28 U.S.C. § 1446, 28 U.S.C. § 1332, 28 U.S.C. § 1367, 18 U.S.C. § 1028, 42 U.S.C. § 1983, 12 U.S.C. § 1819(b)(2)(A), U.S. Constitution Article II, First, Seventh and 14th Amendments, Federal Courts Jurisdiction and Venue Clarification Act of 2011, Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003), and legal writing at http://federalpracticemanual.org/node/14.

Doc. no. 1 at 1. In his 34-page notice of removal, Koch includes a brief section titled: "Federal Question Jurisdiction." Doc. no. 1 at ...


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