United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court upon defendant Jermaine Windham
Mendoza's notice of removal. For the reasons set forth
below, this case will be remanded.
notice of removal, Mendoza seeks to remove “the
proceeding of Case Number: 16SL-PN03459, and the associated
proceeding for the notice of criminal contempt.”
(Docket No. 1). Briefly, the case Mendoza references is an
adult abuse case presently pending in the Twenty-First
Judicial Circuit Court of Missouri. It began on July 18, 2016
when plaintiff Shonna Janean Harden sought an ex
parte order of protection against Mendoza. Mendoza was
ultimately served with the order on October 3, 2016, and a
full order of protection was entered on October 24, 2016. He
filed a motion to set aside the order of protection, but it
was denied. Harden subsequently filed a motion to hold
Mendoza in contempt for violating the terms of the order of
protection. That motion remains pending.
Mendoza advances several bases for removal, and specifically:
his due process rights were violated when Harden gave false
testimony, the state court suppressed evidence, there was a
biased atmosphere, state court judges mishandled state court
proceedings, and motions he filed were denied. Mendoza also
states he was given neither legal counsel “nor victim
of crime support provided to myself the respondent.”
Id. at 1-2. Mendoza further asserts there were
“biased judgements against me by the courts and
plaintiff based upon unfounded accusations, ” and false
statements by plaintiff to gain favor from the courts and
suppress her past conduct. Id.
is a statutory right outlined in 28 U.S.C. § 1441.
“The propriety of removal to federal court depends on
whether the claim comes within the scope of the federal
court's subject matter jurisdiction.” Peters v.
Union Pacific R. Co., 80 F.3d 257, 260 (8th Cir. 1996)
(citing 28 U.S.C. § 1441(b)). A defendant may
remove a state law claim to federal court only if the claim
could have originally been brought in federal court. 28
U.S.C. § 1441; In re Prempro Products Liability
Litigation, 591 F.3d 613, 619 (8th Cir. 2010). The
procedures for removal are set forth in 28 U.S.C. §
1446, which provides, in relevant part, that a notice of
removal must be filed within thirty days after the defendant
receives a copy of the initial pleading setting forth the
claim for relief upon which the action is based. 28 U.S.C.
Court has original jurisdiction over civil actions in which
the parties are diverse and the amount in controversy exceeds
$75, 000.00. 28 U.S.C. § 1332. Removal based upon
federal question jurisdiction is governed by the
“well-pleaded complaint” rule, which provides
that federal jurisdiction may be invoked only where a federal
question is presented upon the face of the complaint.
Krispin v. May Dep't Stores Co., 218 F.3d 919,
922 (8th Cir. 2000). As the party seeking removal, Mendoza
has the burden of establishing federal jurisdiction, and this
Court must resolve all doubts about federal jurisdiction in
favor of remand. See Central Iowa Power Co-op. v. Midwest
Indep. Transmission Sys. Operator, Inc., 561 F.3d 904,
912 (8th Cir. 2009) (internal citations omitted).
Mendoza's notice of removal is untimely. As noted above,
the case commenced in state court on July 18, 2016, and
Mendoza was served on October 3, 2016. He filed the notice of
removal on March 7, 2017, well past the thirty-day time
limit, and he does not assert (nor is it apparent) that he
was served with a pleading or other paper manifesting
removability fewer than thirty days before March 7, 2017.
See 28 U.S.C. § 1446(b)(3).
Mendoza had timely filed the notice of removal, remand would
be necessary because this action could not have originally
been filed in this Court. Subject matter jurisdiction on the
basis of diversity of citizenship cannot exist because both
parties are Missouri citizens, and removal on the basis of
federal question jurisdiction is unavailable because
Harden's cause of action arises under state law. She
initiated this case in state court by filing an adult abuse
petition for an order of protection. This is not a topic that
presents a federal question. While Mendoza alleges a series
of due process violations in support of removal, they all
relate to the judicial process in state court, not the actual
cause of action. Because federal law did not create the cause
of action and Harden's right to relief does not depend on
resolution of a substantial question of federal law, removal
on the basis of federal question jurisdiction is unavailable.
See In re Otter Tail Power Co., 116 F.3d 1207, 1213
(8th Cir. 1997) (“A federal question is raised when . .
. federal law creates the cause of action” or the
“right to relief necessarily depends on resolution of a
substantial question of federal law”).
Court also concludes that Younger abstention is
appropriate here because there are ongoing state judicial
proceedings that implicate important state interests, and
Mendoza does not argue that he lacks the opportunity to
litigate these constitutional challenges in state court.
See Younger v. Harris, 401 U.S. 37 (1971); see
also Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir.
2005) (internal citations omitted) (holding that
Younger requires federal courts to abstain from
hearing cases “when (1) there is an ongoing state
judicial proceeding which (2) implicates important state
interests, and when (3) that proceeding affords an adequate
opportunity to raise the federal questions
for all of the foregoing reasons, IT IS HEREBY
ORDERED that this matter is
REMANDED to the Twenty-First Judicial
Circuit Court of St. Louis County, Missouri.
IS FURTHER ORDERED that Mendoza's motion for
leave to proceed in forma pauperis ...