Opinion
4:07CV00484-WRW.
December 10, 2007
ORDER
Pending is Third-Party Defendants, Joseph Belcher's and Joshua Schwartz's ("Belcher and Schwartz") Motion to Dismiss (Doc. No. 6) based on insufficient service and lack of personal jurisdiction. Also pending is Third-Party Defendants, Ticor Title Insurance Company's and Ticor Title Company of California's ("Ticor") Motion to Dismiss (Doc. No. 11) for failure to state sufficient facts upon which relief may be granted. Third-Party Plaintiffs Gary Balentine and Sherry Balentine ("the Balentines") did not respond to either motion, even though they received an extension.
Doc. No. 16.
The original complaint, in which GMAC was plaintiff, was not removed. Despite this, GMAC filed a Motion for Attorneys' Fees and Costs (Doc. No. 15), which is pending. The Balentines responded (Doc No. 18) to GMAC's complaint.
I. Background
II. Authority
12 U.S.C. § 261428 U.S.C. § 1441
Doc. No. 2.
Doc. No. 5.
Id.
15 U.S.C. § 1601 et seq.
12 U.S.C. § 2605 et seq.
Doc. No. 5.
Doc. No. 1.
Shannon v. Shannon, 965 F.2d 542, 545 (7th Cir. 1992).
Rand v. State of Arkansas, 191 F. Supp. 20 (W.D. Ark. 1961); 28 U.S.C. § 1447(c).
International Ass'n. of Entrepreneurs of America, 58 F.3d 1266, 1270 (8th Cir. 1995).
Some courts have permitted removal by a third-party defendant. However, the majority of federal district courts have held that only defendants joined by a plaintiff in the original complaint may remove. District courts in the Eighth Circuit follow the majority rule, and have not permitted a third-party defendant to remove a state action to federal court.
See Central of G. R. Co. v. Riegel Textile Corp., 426 F.2d 935, 937 (5th Cir. 1970).
See Milton S. Hershey Med. Ctr. v. Grinnage, No. 1:07-CV-0539, 2007 U.S. Dist. Lexis 85635, at *8-*9 (M.D. Penn. November 20, 2007).
See Sequoyah Feed and Supply Co. v. Robinson, 101 F. Supp 680, 682 (W.D Ark. 1951); Shaver v. Arkansas Best Freight System, Inc., 171 F. Supp 754, 762 (W.D. Ark. 1959); Fiblenski v. Hirschback Motor Lines, Inc., 304 F. Supp. 283, 285 (E.D. Ark. 1969).
III. Discussion
Belcher and Schwartz, Third-Party Defendants, removed this foreclosure action from the Circuit Court of Cross County, Arkansas. No other party joined in the removal, and the Balentines never filed a motion to remand. Considering that the action of the original plaintiff, GMAC, had not been removed, GMAC's Motion for Attorney's Fees caused me to examine the basis for removal, as well as my authority to rule on GMAC's motion and the other pending motions in this matter.
Subject-matter jurisdiction defines a court's statutory or constitutional power to adjudicate the case. The removal statute states: "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." I have an obligation to determine if I have the power to adjudicate this case. Based on the authority cited above, it appears that I do not.
United States v. Cotton, 535 U.S. 625, 630 (2002); Scarborough v. Principi, 541 U.S. 401, 414 (2004).
28 U.S.C. § 1447(c) (emphasis added); see also Wabash Ry. Co. v. Lindley, 29 F.2d 829 (8th Cir. 1928) (holding that a district court may remand on its own motion); Auto Owners Ins. Co. v. Tribal Court of Spirit of Lake Indian Reservation, 495 F.3d 1017, 1020 (8th Cir. 2007) (holding that even appellate courts may question of subject-matter jurisdiction sua sponte).
IV. Conclusion
Accordingly, this case is REMANDED to the Cross County Circuit Court in Arkansas. The Motions to Dismiss (Doc. Nos. 6, 11) are DENIED for lack of jurisdiction, and GMAC's Motion for Attorney's Fees (Doc. No. 15) is DENIED for lack of jurisdiction.
IT IS SO ORDERED.