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Darryl Jorgenson Realty, LLC v. Kieffer

United States District Court, D. Minnesota

May 18, 2015

DARRYL JORGENSON REALTY, LLC, Plaintiff,
v.
HOWARD O. KIEFFER, Defendant.

Richard K. Hocking, RICHARD K. HOCKING, PA, 10657 165th Street West, Lakeville, MN 55044, for plaintiff.

Howard O. Kieffer, No. 90513-012, Federal Correctional Institution Englewood, 9595 West Quincy Avenue, Littleton, CO 80123, pro se.

MEMORANDUM OPINION AND ORDER REJECTING THE RECOMMENDATION OF THE MAGISTRATE JUDGE AND GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS

JOHN R. TUNHEIM, District Judge.

Plaintiff Darryl Jorgenson Realty, LLC ("Darryl Jorgenson Realty") filed this action in Minnesota state court to cancel a certificate of title and determine all rights terminated under a contract for deed. Defendant Howard Kieffer removed the action to federal court and applied for permission to proceed in forma pauperis ("IFP"). United States Magistrate Judge Leo I. Brisbois recommended denying Kieffer's application to proceed IFP as moot and remanding the action to Minnesota state court due to an untimely attempt to remove. This matter is now before the Court on Kieffer's objections to the Magistrate Judge's Report and Recommendation ("R&R"). The Court will sustain Kieffer's objections, because it finds that Darryl Jorgenson Realty's Minnesota state court petition did not put Kieffer on notice that the amount in controversy might be sufficient to confer diversity jurisdiction. Therefore, the Court will reject the R&R and grant Kieffer's IFP application.

BACKGROUND

On May 22, 2014, Darryl Jorgenson Realty filed a Petition for an Order Showing Cancellation of a Contract for Deed ("petition") in the Minnesota state district court of St. Louis County. (Notice of Removal, Ex. 1 (Compl. & State Ct. Docs. ("Compl.")), Nov. 20, 2014, Docket No. 1.) The petition refers to "land described as Unit 20, CIC Number 86, Tundra Storage Condominiums of Hermantown." (Id. at 1.) Darryl Jorgenson Realty alleges that the "Contract for Deed Doc. No. 868908 has been cancelled pursuant to law and that any interest of the vendee(s) [Kieffer and his former wife] in said Contract and any parties who claim through said Contract were thereby terminated." (Id. at 2.) The petition requests "an Order of the Court directing the Registrar of Titles to cancel Certificate of Title No. 330440, to determine that all rights under Contract for Deed Doc. No. 868908 have terminated, and to enter a new Certificate of Title for the Property omitting therefrom and from future Certificates of Title issued for the Property...." (Id. ) It does not specify an amount or value in controversy.

Although Kieffer is not named in Darryl Jorgenson Realty's petition, an Order to Show Cause was issued for Kieffer on June 13, 2014, in connection with the petition. (Objections to R&R at 3, Dec. 4, 2014, Docket No. 4.) Kieffer filed an answer to the petition as a "Real Party in Interest" on August 30, 2014. (Compl. at 29-34.) He maintains, however, that it was not until he "was served with discovery requests in the state court matter, on November 7, 2014, that he was able to infer that the petition was seeking to dispossess him of all rights, title and interest in the subject property and its contents, valued in excess of $75, 000." (Objections to R&R at 4.) Kieffer then filed a Notice of Removal on November 20, 2014, removing the petition to federal court. (Notice of Removal.) On the same day, he filed an application to proceed IFP. (Appl. to Proceed in District Ct. Without Prepaying Fees or Costs ("IFP Appl."), Nov. 20, 2014, Docket No. 2.)

On November 21, 2014, Magistrate Judge Brisbois issued an R&R denying as moot Kieffer's IFP application and recommending remand to state court. (R&R, Nov. 21, 2014, Docket No. 3.) The R&R explained that "[i]t is far from clear that this Court has original jurisdiction over proceedings to register land" and concluded that, in any event, "Kieffer's attempt to remove the proceedings was untimely." (Id. at 1.) The Magistrate Judge found that Kieffer was aware of the petition by August 30, 2014 - the date on which he filed his answer - at the latest, and likely received the pleading even before that date. (Id. at 2.) Accordingly, the Magistrate Judge found that Kieffer's November 20 Notice of Removal fell well outside the 30-day window for removal of proceedings under 28 U.S.C. ยง 1446(b)(1). Kieffer timely objected to the R&R on December 4, 2014. (Objections to R&R.) This matter is now before the Court on Kieffer's objections.

DISCUSSION

I. STANDARD OF REVIEW

Upon the filing of a report and recommendation by a magistrate judge, a party may "serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR 72.2(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). "The objections should specify the portions of the magistrate judge's report and recommendation to which objections are made and provide a basis for those objections." Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008).

II. NOTICE OF REMOVAL

A. Timeliness

Kieffer objects to the Magistrate Judge's determination that his removal was untimely. He argues that neither Darryl Jorgenson Realty's filing of the petition in state court on May 22 nor Kieffer's answer to the petition on August 30 ...


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