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Green v. Green

United States District Court, Eighth Circuit

October 3, 2013

Elizabeth Yvette Green, Petitioner,
v.
Carl Lee Green, Respondent, Washington County, Intervenor.

Elizabeth Yvette Green, Cannon Falls, Minnesota 55009, pro se Petitioner.

Carl Lee Green, Duluth, Minnesota 55803, pro se Respondent.

Susan Steffen Tice and Maura J. Shuttleworth, Washington County Attorney's Office, 15015 62nd Street North, P.O. Box 6, Stillwater, Minnesota, 55002, for Intervenor.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

I. INTRODUCTION

This matter is before the Court for consideration of Respondent's Objections [Doc. No. 19] to United States Magistrate Judge Leo I. Brisbois' May 29, 2013, Report and Recommendation ("R&R") [Doc. No. 18]. The Magistrate Judge recommended that Intervenor's Motion to Remand [Doc. No. 2] be granted in part because Respondent's removal to federal court was improper. The Magistrate Judge also recommended that Intervenor's request for attorneys' fees and costs be denied. For the reasons set forth below, Respondent's Objections are overruled and the Court adopts the R&R.

II. BACKGROUND

As the Magistrate Judge's R&R documents the factual and procedural background of this case, the Court incorporates it by reference. This case arises from the dissolution of marriage between Petitioner Elizabeth Yvette Green and Respondent Carl Lee Green, who divorced in 2003. In 2006, Petitioner applied to Washington County Community Services for child support establishment and enforcement. Intervenor Washington County intervened in the divorce action by bringing a Motion for Establishment of Child Support. On January 4, 2007, the state Child Support Magistrate ordered Respondent to pay child support of $485 per month, beginning on November 1, 2006.

More than three years later, Intervenor sought an order to show cause and a contempt order, which were personally served on Respondent on July 23, 2009. Intervenor alleged that Respondent had not made any child support payments, and as of April 30, 2009, was in arrears of $15, 568.22. On October 23, 2009, the Washington County District Court found Respondent in contempt of court, ordering Respondent to make monthly child support payments and monthly payments toward the arrearage.

On November 16, 2012, the Washington County District Court held a review hearing, during which Respondent objected to Intervenor's arrearage calculation. At Respondent's request, the review hearing was reset for December 14, 2012. Respondent did not appear for the rescheduled hearing, and the Washington County District Court issued a Writ of Attachment for his arrest setting bail at $2000 cash or $20, 000 bond. In January 2013, Respondent was taken into custody and transported to the Washington County Jail. On February 1, 2013, Respondent was arraigned. On February 5, 2013, the Washington County District Court held a hearing and reduced the cash bail to $1, 300, which Respondent paid.

On February 7, 2013, Respondent filed his Notice of Removal, alleging federal jurisdiction under the Equal Protection Clause and asserting denial of due process. (Notice of Removal of Contempt of Court Order under Federal Law for Equal Protection [Doc. No. 1].) On March 8, 2013, Intervenor moved to remand the case to state court. (Mot. to Remand [Doc. No. 2].) Intervenor also sought attorneys' fees and costs incurred in bringing the motion to remand. (Id.) On May 29, 2013, the Magistrate Judge recommended that this Court (1) grant Intervenor's Motion to Remand because Respondent's removal was improper, and (2) deny Intervenor's request for an award of attorneys' fees and costs. (Report and Recommendation [Doc. No. 18].) On June 7, 2013, Respondent objected to the R&R, (1) arguing that the Magistrate Judge did not consider 28 U.S.C. § 1443 as a basis for removal, and (2) stating Respondent served a Notice of Removal on Washington County. (Objections to Report and Recommendation [Doc. No. 19].)

III. DISCUSSION

A. Standard of Review

A party "may file and serve specific written objections to a magistrate judge's proposed findings and recommendations." D.Minn. LR 72.2(b)(1). The district court will review de novo those portions of the R&R to which an objection is made, and it "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(3); D.Minn. LR 72.2(b)(3). ...


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