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Caranchini v. Peck

United States District Court, W.D. Missouri, Western Division

March 25, 2019

GWENDOLYN GILL CARANCHINI, Plaintiff,
v.
RICK PECK, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO TRANSFER AND PLAINTIFF'S MOTIONS TO REMAND AND SANCTION COUNSEL

          GREG KAYS, JUDGE.

         This case arises from Defendant Rick Peck's termination of his extramarital relationship with Plaintiff Gwendolyn Caranchini. Plaintiff now sues Peck, alleging he negligently and intentionally caused her emotional distress. Now before the Court is Peck's Motion to Transfer (Doc. 5), along with Plaintiff's response, which this Court construes as a motion to remand and a motion for sanctions (Doc. 6).

         Because the Court has subject matter jurisdiction, Plaintiff's motion to remand is DENIED. Defendant's motion to transfer is also DENIED because he has failed to carry his burden that transfer is warranted. Finally, Plaintiff has failed to comply with the procedural requirements for sanctions under Rule 11, and thus, her motion for sanctions is DENIED.

         Background

         Plaintiff, a citizen of Missouri, and Peck, a citizen of Kansas, began having an extramarital affair in 2007. The relationship lasted until December 24, 2016, when Peck terminated the relationship. The breakup occurred in Kansas City, Missouri.

         Plaintiff tried to communicate with Peck after the breakup. He responded at first but eventually began ignoring Plaintiff's communication attempts. Insistent on talking with Peck, Plaintiff kept contacting him.

         At some point, Peck and his ex-wife-who he was still living with-filed for a Temporary Restraining Order (“TRO”) against Plaintiff in Kansas state court. Plaintiff appeared before a judge for a hearing on the TRO, and after the hearing concluded, deputies from the Johnson County Sheriff's Department arrested Plaintiff on telephone harassment charges against Peck and his ex-wife. The deputies took Plaintiff to jail, where she remained until she posted her bond thirty-six hours later. The state later dismissed the charges.

         Plaintiff subsequently sued Peck, his ex-wife, two assistant district attorneys for Johnson County, Kansas, and two judges for Johnson County, Kansas, in the Western District of Missouri. The Court dismissed those claims for lack of personal jurisdiction. Caranchini v. Peck, 4:17-CV-00667-GAF (W.D. Mo. Dec. 19, 2017) (Doc. 32). She then filed suit against Peck, his ex-wife, the Johnson County Sheriff, and individuals in the Johnson County Court and District Attorney's Office in the District of Kansas. The Court dismissed Plaintiff's case because her complaint failed to state a claim. Caranchini v. Peck, 18-CV-2249-TJJ (D. Kan. Dec. 10, 2018) (Doc. 130).

         In January 2019, Plaintiff filed this lawsuit against Peck in Jackson County, Missouri, Circuit Court. It alleges Peck negligently caused her emotional distress by terminating their relationship and sending her to jail, and he intentionally caused her distress by refusing to talk to her after a process servicer served him with a different lawsuit Plaintiff had filed against him.[1]Peck timely removed the action to federal court.

         Discussion

         Neither party wants the case to remain in the Western District of Missouri: Plaintiff claims the Court should remand this case back to state court, while Peck requests the Court transfer it to the District of Kansas. Their arguments are unavailing.

         I. Plaintiff's motion to remand is denied.

         Title 28 of United States Code section 1441(a) provides that a defendant may remove “any civil action brought in a State court of which the district courts . . . have original jurisdiction.” Removal is proper when a case originally filed in state court presents a federal question or where there is diversity of citizenship among the parties and the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332(a). Section 1447(c) provides that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” A plaintiff may challenge removal through a motion to remand. 28 U.S.C. § 1447(c). The party seeking removal and opposing remand has the burden of federal jurisdiction. Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 823 (8th Cir. 2010).

         Plaintiff does not dispute the Court's subject matter jurisdiction over this case.[2] Rather, she alleges that because she had yet to serve Peck at the time of removal, removal was untimely. Nothing in 28 U.S.C. § 1441 requires a defendant to have been served prior to removing a case to federal court. In fact, 28 U.S.C. § 1446(b) seems to explicitly authorize the practice, providing that removal is proper within thirty days of the defendant's receipt of the complaint “through service or otherwise.& ...


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