United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Bowbeer United States Magistrate Judge.
Alex Mehralian, acting on behalf of the estate of Defendant
Jill McGrand, seeks to remove this state-court litigation to
federal court. He has filed an application to proceed in
forma pauperis in conjunction with his efforts. [Doc.
No. 2.] Because it is clear that the removal was improper and
the Court lacks jurisdiction over the resulting action, it is
recommended that the matter be remanded to state court.
28 U.S.C. § 1441(a), “[e]xcept 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.” That said, there
are several limitations placed on defendants seeking to
remove state-court litigation to federal court. Many of those
limitations have not been overcome here.
a litigant seeking removal must include, along with his
notice of removal, “a copy of all process, pleadings,
and orders served upon such defendant or defendants in such
action.” 28 U.S.C. § 1446(a). Although Mehralian
has included many of the documents filed and served in the
state-court action [see Doc. Nos. 3, 4], he has not
included the pleading that initiated the litigation. Without
a copy of that pleading, Mehralian cannot demonstrate that
there is a basis for federal jurisdiction over the action
filed in state court. This mistake is correctable, in that
the Court could ask Mehralian to submit a copy of the
original pleading as required by § 1446(a), but as
explained below, other mistakes cannot be corrected.
Mehralian has not established an adequate basis in his notice
of removal for seeking to relocate this litigation to federal
court. Mehralian asserts that his action may be removed to
federal court because he has asserted a counterclaim in the
state-court action seeking relief under federal law. But
“[o]nly state-court actions that originally
could have been filed in federal court may be removed to
federal court by the defendant.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 392 (1987) (emphasis added).
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 . . . makes the plaintiff the master of the claim;
he or she may avoid federal jurisdiction by exclusive
reliance on state law.” Id.; accord
Capital One Bank (USA) NA v. Mashak, No. 13-cv-2418
(PJS/FLN), 2014 WL 300971, at *2-3 (D. Minn. Jan. 27, 2014)
(collecting cases). Put another way, Mehralian's
counterclaims are irrelevant to determining whether this
matter may be removed from state court; only the original
pleading counts. And Mehralian provides no basis to believe
that the state-court action as framed by the original
pleading is one “of which the district courts of the
United States have original jurisdiction, ” 28 U.S.C.
§ 1441(a), meaning a matter that may be removed.
even if the action could have been removed,
Mehralian attempted to do so too late. Under § 1446(b),
[t]he notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
date on which Mehralian and McGrand were served with the
complaint is not clear from the record before this Court, but
Mehralian unquestionably had received a copy of the initial
pleading by no later than March 21, 2018, as he then
submitted his counterclaim (on behalf of McGrand) in state
court. [See Doc. No. 3 at 26.] The notice of removal
was not filed in this matter until May 24, 2018, which was 64
days later, and well more than the 30 days permitted under
summary, this action may not be removed, and the attempt to
do so was too late. Accordingly, the Court recommends that
this matter be remanded to state court. Mehralian's
application to proceed in forma pauperis [Doc. No.
2] should be denied as moot.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED
1. This matter be REMANDED to the Fourth
Judicial District Court, Hennepin County, State of Minnesota.
2. Defendant Alex Mehralian's application to proceed
in forma pauperis [Doc. No. 2] be DENIED AS
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not