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Hanson v. Willis

United States District Court, Eighth Circuit

October 2, 2013

JOHN GREGORY HANSON, Petitioner,
v.
BERRY A. WILLIS, Respondent.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, Magistrate Judge.

This matter is before the undersigned United States Magistrate Judge on the application of respondent, Berry A. Willis, for leave to proceed in forma pauperis, ("IFP"). (Docket No. 2.) Respondent's IFP application was filed with a self-styled "Notice of Removal, " (Docket No. 1), by which respondent is attempting to remove this action from state court into federal court, pursuant to 28 U.S.C. §§ 1441, et seq.

The case has been referred to this Court for a Report and Recommendation under 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court finds that removal is not permissible in this case. The Court will therefore recommend that respondent's IFP application be denied, that his "Notice of Removal" be vacated, and that this action be summarily remanded to the state court where it was originally commenced.

I. BACKGROUND

The named petitioner in this case, John Gregory Hanson, commenced the present action by filing an application for a Harassment Restraining Order, ("HRO"), in the state district court for Hennepin County, Minnesota. ("Notice of Removal, " "Exhibit A, " [Docket No. 1-1].) The application that initiated this action in the state court was based solely on a Minnesota state statute - Minn.Stat. 609.748. Nothing in the current record suggests that petitioner cited, or relied upon, any federal law to support his HRO petition. Furthermore, respondent has not cited, (and the Court is not aware of), any federal law on which petitioner's HRO petition could have been based.

An initial HRO for petitioner's benefit was entered in the Hennepin County District Court on or about September 24, 2013. (Id.) It appears that respondent can challenge the initial HRO by requesting a hearing within 45 days. (Id.)

On September 27, 2013, respondent initiated his current effort to remove the state court HRO proceedings into federal court. As previously mentioned, respondent did not tender the statutory filing fee with his notice of removal, but instead applied for IFP status. The Court finds that respondent's IFP application must be denied, and this case must be summarily remanded to the state court, because petitioner's HRO petition provides no grounds for federal subject matter jurisdiction.

II. DISCUSSION

The federal removal statute provides that

Except as otherwise expressly provided by Act of Congress, 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 the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a) (emphasis added).

The federal removal statute is narrowly construed, to ensure that federal courts do not violate the important principles of comity and federalism, by entertaining actions in which federal subject matter jurisdiction is lacking. See Nichols v. Harbor Venture, Inc. , 284 F.3d 857, 861 (8th Cir. 2002) ("the nature of federal removal jurisdiction - restricting as it does the power of the states to resolve controversies in their own courts - requires strict construction of the legislation permitting removal"); see also In re Business Men's Assur. Co. of America , 992 F.2d 181, 183 (8th Cir. 1993) ("district court was required to resolve all doubts about federal jurisdiction in favor of remand").

The fundamental principles governing removal of state court actions to federal court have been summarized by the United States Supreme Court as follows:

Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant. [Footnote omitted.] Absent diversity of citizenship, federal-question jurisdiction is required. [Footnote omitted.] The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. See Gully v. First National Bank , 299 U.S. 109, 112-113 (1936). The ...

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