United States District Court, D. New Hampshire
Kenneth Forrence et al.
Paul Koch and Acquvest, Inc.
MCCAFFERTY UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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) .
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.
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.
Federal Question Jurisdiction
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 ...