United States District Court, W.D. Missouri, Western Division
ORDER DENYING DEFENDANT'S MOTION TO TRANSFER AND
PLAINTIFF'S MOTIONS TO REMAND AND SANCTION
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).
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
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.
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.
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.
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).
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.Peck timely removed the
action to federal court.
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.
Plaintiff's motion to remand is denied.
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).
does not dispute the Court's subject matter jurisdiction
over this case. 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