Opinion
CV 01-1474-BR.
February 12, 2002
MARK A. AMES, Portland, OR., Attorney for Plaintiffs.
JOHN S. NOLAN, Portland, OR., Defendant, Pro Se.
JOHN S. NOLAN INSURANCE CONSULTING, INC., Portland, OR., Defendant (not appearing with counsel).
OPINION AND ORDER
This matter comes before the Court on Plaintiffs' Motion for Order Remanding Action to Oregon State Court and for an Award of Costs and Fees to Plaintiffs (#7) and Plaintiffs' Motion for Order of Default and Judgment of Restitution Against John S. Nolan Insurance Consulting, Inc., and for Plaintiffs' Costs and Attorney Fees (#12).
For the reasons that follow, the Court GRANTS in part and DENIES in part Plaintiffs' Motion to remand and takes no action on Plaintiffs' Motion for Order of Default.
BACKGROUND
Plaintiffs John S. Bruce and John G. Doerfler originally filed a Complaint in Multnomah County Circuit Court alleging forcible entry and unlawful detainer. Defendants filed an Answer in state court denying the allegations in Plaintiffs' Complaint. Within 30 days of service of the Complaint, Defendants filed a Notice of Removal in this Court.
In the caption of the Notice of Removal, Defendants include several additional Plaintiffs. No amended Complaint, however, has been filed to include these individuals and entities nor have they appeared in this case. The only Plaintiffs in this action are Bruce and Doerfler, the individuals who filed the original Complaint in state court.
On November 15, 2001, the Court advised Nolan that Defendant John S. Nolan Insurance Consulting, Inc., must be represented by an attorney to appear in this court. The Court ordered the Defendant corporation to file a Notice of Appearance by an attorney on behalf of the corporation not later than December 20, 2001. To date, no attorney has appeared on behalf of the Defendant corporation. The Court, therefore, will not consider any arguments on behalf of the Defendant corporation.
STANDARDS
An action filed in state court may be removed to federal court if the federal court would have had original subject matter jurisdiction over the action. 28 U.S.C. § 1441(a). District courts are authorized to exercise original jurisdiction over civil actions in which the matter in controversy exceeds the sum or value of $75,000 exclusive of interest and costs, the parties are citizens of different states, or the action arises under federal law. 28 U.S.C. § 1332(a), 1331. A motion to remand is the proper procedure for challenging removal. See Northern California Dist. Council of Laborers v. Pittsburgh-Des Moines Steel Co., 69 F.3d 1034, 1038 (1995). The removal statute is strictly construed, and any doubt about the right of removal is resolved in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). The presumption against removal means "the defendant always has the burden of establishing that removal is proper." Id. (citationsANALYSIS
I. Federal Jurisdiction
It is undisputed that Plaintiffs and Defendants are residents of Oregon. This Court, therefore, does not have diversity jurisdiction under 28 U.S.C. § 1332(a). It also is clear that Plaintiffs allege no claim arising under the Constitution or laws of the United States. This Court, therefore, does not have subject matter jurisdiction under 28 U.S.C. § 1331.
In his Affidavit in opposition to Plaintiffs' Motion to Remand, Nolan makes numerous allegations concerning the circumstances underlying Plaintiffs' Complaint and asserts he has been denied various civil rights. It is unclear, however, whether Nolan is alleging Plaintiffs or Multnomah County Circuit Court deprived him of those rights. In any event, Nolan's allegations are extraneous to the matter before this Court because neither the Complaint nor the Answer filed in this matter alleges any deprivation of constitutional rights by a person acting under color of state law. See 28 U.S.C. § 1983. If Nolan believes his constitutional rights have been violated, he may bring a separate action in a court of proper jurisdiction based on sufficient allegations in a complaint.
II. Multnomah County Circuit Court Jurisdiction
Nolan also makes various allegations challenging the jurisdiction of the Multnomah County Circuit Court to adjudicate this matter. This Court, however, does not have authority to address challenges to the jurisdiction of state courts. Landlord/tenant disputes traditionally fall within the jurisdiction of state courts. Nolan nevertheless may raise his jurisdictional challenges before the state court on remand.
III. Attorneys' Fees
Plaintiffs also seek an award of attorneys' fees and costs for bringing their Motion to Remand. 28 U.S.C. § 1447(c) provides in part that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." An award of attorneys' fees pursuant to § 1447(c) is within the court's discretion. Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 448 (9th Cir. 1992).
The Court denies Plaintiffs' request for attorneys' fees. Nolan is proceeding without the assistance of counsel and may have been unaware of the removal requirements. Nolan also apparently intends to assert civil claims against Plaintiffs and may have believed his attempt to assert those claims supported federal jurisdiction. The Court does not assume Nolan has the same familiarity with federal law and civil procedure as is expected of a lawyer practicing before this Court. Nolan is advised, however, that the Court will require him to reimburse Plaintiffs for any future costs and expenses associated with remand if he persists in his efforts to remove this action to federal court improperly.
IV. Motion for Entry of Default
Plaintiffs also have filed a motion for entry of default against Defendant John S. Nolan Insurance Consulting, Inc., for its failure to appear before this Court through an attorney as this Court ordered. The Court acknowledges it invited Plaintiffs to move for a default judgment against the corporate Defendant in the event the corporation did not appear through counsel as ordered. This Court's conclusion that it lacks jurisdiction, however, also precludes the Court from entering a default judgment. Plaintiffs' Motion for Order of Default, therefore, remains pending for resolution by the state court on remand.
V. Criminal Complaints
Nolan also filed in this Court three "Criminal Complaints" that have been entered in the docket for this matter (#16, #17, #18). To the extent Nolan seeks to prosecute a criminal action against the named parties, the Complaints are of no effect. The authority to prosecute criminal actions in federal court resides solely in the United States government. See 28 U.S.C. § 547. See also Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989). If Nolan merely intended to assert violations of his constitutional rights, he may, as noted, seek to do so by bringing a separate action in the appropriate court.
CONCLUSION
For the reasons set forth above, the Court GRANTS in part and DENIES in part Plaintiffs' Motion for Order Remanding Action to Oregon State Court and for an Award of Costs and Fees to Plaintiffs (#7) and remands this action to Multnomah County Circuit Court. The Court takes no action as to Plaintiffs' Motion for Order of Default and Judgment of Restitution Against John S. Nolan Insurance Consulting, Inc., and for Plaintiffs' Costs and Attorney Fees (#12). That Motion remains pending for resolution by the Multnomah County Circuit Court upon remand.
IT IS SO ORDERED.