Disanto v. Thomas

• Decision Date: 02 February 2016
• Docket Number: CIVIL ACTION NO.: 5:15-cv-36
• Parties: DORENE DISANTO; KAREN LAWSON; MARGARET CARTWRIGHT; STATE OF OHIO; and MIKE DEWINE, Plaintiffs, v. THOMAS L. THOMAS, Defendant.
• Court: U.S. District Court — Southern District of Georgia

DORENE DISANTO; KAREN LAWSON; MARGARET CARTWRIGHT;STATE OF OHIO; and MIKE DEWINE, Plaintiffs, v. THOMAS L. THOMAS, Defendant.

CIVIL ACTION NO.: 5:15-cv-36

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA WAYCROSS DIVISION

February 2, 2016

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Defendant Thomas L. Thomas ("Thomas"), a resident of Brantley County, Georgia, filed a Notice of Removal in this Court pursuant to 28 U.S.C. § 1441, et seq., 28 U.S.C. §§ 1331 and 1332, and 25 U.S.C. § 1901, et seq., on May 26, 2015. (Doc. 1.) Karen Lawson, a judge with the Lake County, Ohio, Juvenile Court, and Margaret Cartwright, a support officer with the Lake County, Ohio, Department of Job and Family Services, Child Support Enforcement Division, filed a Motion for Remand on June 23, 2015. (Doc. 12.) Thomas filed a Response, and Lawson and Cartwright filed a Reply. (Docs. 21, 23.) For the reasons which follow, I RECOMMEND that the Court GRANT Lawson and Cartwright's Motion, REMAND this case to the Lake County, Ohio, Court of Common Pleas, and CLOSE this case. For these same reasons, I RECOMMEND the Court DISMISS Thomas' Motions for Default Judgment, Motions to Amend/Correct, Motions to Strike, and Motion for Immediate Consideration, (docs. 13, 17, 20, 22, 24, 26, 27, 30), as moot.¹

BACKGROUND

In December 2014, Dorene DiSanto ("DiSanto") requested the assistance of the Lake Court, Ohio Department of Job and Family Services, Child Support Division ("Lake County DJFS") to establish paternity for her minor child, who was born in 2003. The Lake County DJFS notified Thomas, the minor child's alleged father, of DiSanto's request to establish paternity on February 12, 2015. (Doc. 12-2, p. 1.) By this same document, Thomas was ordered to appear for genetic testing at LabCorp in Brunswick, Georgia, on March 17, 2015. (Id. at p. 2.) Thomas failed to submit to genetic testing, and the Lake County DJFS determined paternity was inconclusive as a result of Thomas' failure to submit to genetic testing. (Id. at pp. 5-6.)

Thomas then initiated suit against DiSanto in the Brantley County, Georgia, Superior Court on March 18, 2015, for child custody, child support, and show cause. According to Thomas, DiSanto's request to establish paternity of her minor child with the Lake County DJFS was "fraudulently/falsely filed[.]" (Doc. 12-3, p. 2.) Thomas asserted the Brantley County Superior Court had "absolute/exclusive Subject Matter Jurisdiction" over his case. (Id.) DiSanto filed an answer to Thomas' complaint, as well as a motion to dismiss, on April 27, 2015. In her motion to dismiss, DiSanto alleged she and the minor child reside in Ohio, Thomas has not been determined to be the minor child's father, and she and Thomas were never married. (Id. at p. 11.) The Brantley County Superior Court determined Thomas and DiSanto were never married and that Ohio is the home state for purposes of a custody determination and dismissed Thomas' complaint on June 4, 2015. (Doc. 31-2.)

On April 23, 2015, DiSanto filed a custody/emergency ex parte complaint in the Court of Common Pleas in Lake County, Ohio, against Thomas, Case Number 2015CV00603. DiSantostated she and the minor child had been living in Ohio since April 2013, and she feared Thomas would attempt to take the minor child to Georgia without her knowledge or permission. DiSanto's request for ex parte relief was granted by Karen Lawson, a Lake County Juvenile Court Magistrate Judge and a named "Plaintiff" in this cause of action. (Doc. 12-4, p. 9.)

Thomas, in turn, filed a complaint/counter-complaint for custody, visitation, child support, objection to DNA testing, and habeas corpus of child in the Court of Common Pleas in Lake County, Ohio, Juvenile Division on May 18, 2015, Case Number 2015-P-0028. In that complaint, Thomas stated that he is not the minor child's biological father, but he raised the minor child as a father would. Thomas also stated the Lake County court lacked jurisdiction over him and the minor child because they are both registered members of the Penbina Nation Little Shell of North America, and exclusive subject matter jurisdiction rests with the "Tribal Court, Federal Courts, and/or will be Transferred to the US District Court over Federal Questions of Law[.]" (Doc. 12-4, p. 17.)

Thomas filed the Notice of Removal of the pending Lake County, Ohio, case (Number 2015-CV-00603), in this Court on May 26, 2015. (Doc. 1.) In addition to DiSanto, Lawson, and Cartwright, Thomas names the State of Ohio and Mike DeWine, the Ohio Attorney General, as Plaintiffs-Respondents in his Notice. As stated above, Thomas bases his Notice on 28 U.S.C. § 1441, et seq., 28 U.S.C. §§ 1331 and 1332, and 25 U.S.C. § 1901, et seq., and claims this Court has jurisdiction over this matter based on these statutes. (Id. at p. 2.) Specifically, Thomas avers this Court "retains exclusive Subject Matter Jurisdiction over Native-American Child and over State Courts currently acting without Subject Matter Jurisdiction to enforce Tribal law[.]" (Id.) Thomas maintains he "possesses the Right to file a Federal Notice of Removal against Plaintiff-Respondent(s) et at [sic] for blatantly violating [his] clearly established Federal Civil Rights, Federal Statutes/Laws[.]" (Id. at p. 3.)

DISCUSSION

Lawson and Cartwright move for the remand of this matter to the Court of Common Pleas in Lake County, Ohio, contending this cause of action was improperly removed to this Court. (Doc. 12-1, p. 3.) First, Lawson and Cartwright state that many of the removal statutes, Section 1441, et seq., do not apply and do not provide a basis for removal. (Id. at pp. 4-7.) Lawson and Cartwright also assert that Thomas does not present a federal question under Section 1331, and he does not satisfy the amount in controversy requirement under Section 1332. (Id. at pp. 8-9.) In addition, Lawson and Cartwright allege the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq., does not apply to confer jurisdiction upon this Court. (Id. at pp. 9-13.) Thomas responds that Lawson and Cartwright have "intentionally and in bad faith" filed their Motion for Remand and cited to inapplicable, unpublished case law and misstatement of facts in an effort to "mislead" this Court. (Doc. 21, p. 1.)

The Court agrees this cause of action was removed from the Lake County, Ohio Court of Common Pleas' jurisdiction improperly. Lawson's and Cartwright's Motion requires analysis under many statutes and applicable case law, which the Court addresses in turn.

I. Legal Standard for Removal

A defendant may remove a case from state court to federal court if the federal court had jurisdiction to hear the case originally. 28 U.S.C. § 1331 ("[A] district court has subject matter jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States."); see also 28 U.S.C. § 1441(a) ("[A]ny civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendantor the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."). "Given that removal jurisdiction raises significant federalism concerns, 'federal courts are directed to construe removal statutes strictly. Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court.'" Miller v. Holmes, No. CV 215-46, 2015 WL 6408119, at *2 (S.D. Ga. Oct. 23, 2015) (quoting City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (quoting Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)). "The removing party 'bear[s] the burden of demonstrating federal jurisdiction.'" Id. (quoting Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998)).

II. Whether Thomas has Asserted a Proper Basis for Removal Pursuant to 28 U.S.C. § 1441, et seq.

Lawson and Cartwright assert Sections 1441 through 1452 of Title 28 of the United States Code do not provide any basis for removal of the Lake County, Ohio, child custody case. Lawson and Cartwright contend Sections 1442, 1442a, 1444, and 1452 do not apply, as these Sections concern removal: when federal officers or agencies are sued or prosecuted; when members of the armed forces are sued or prosecuted; of foreclosure actions against the United States; and of bankruptcy cases, respectively. Because Thomas' Notice of Removal concerns a cause of action involving the custody of a minor child, Lawson and Cartwright posit these statutes do not provide bases for removal to this Court. Likewise, Lawson and Cartwright aver Sections 1443 and 1441 do not authorize removal.

A. Sections 1442, 1442a, 1444, and 1452

Sections 1442, 1442a, 1444, and 1452 of Title 28 of the United States Code authorize the removal of actions commenced in state courts concerning: civil and criminal suits against federal officers or agencies and members of the armed services, (Sections 1442 and 1442a); foreclosureor other real property actions involving the United States, (Section 1444); and bankruptcy proceedings, (Section 1452). Lawson and Cartwright are correct that these four Code Sections of Title 28 do not authorize the removal to this Court of a child custody case arising in Lake County, Ohio.² Thus, these statutes do not provide a basis for removal of a state court action to this Court.

B. Section 1443

Lawson and Cartwright contend a two-pronged test must be satisfied for removal under Section 1443. First, a petitioner must show the deprivation of a right that arises under federal law providing for specific civil rights stated in terms of racial equality. In addition, the deprivation must be manifest in a formal expression of state law. (Doc. 12-1, pp. 4-5.) Lawson and Cartwright aver persuasive authority holds removal under the Indian Child Welfare Act ("ICWA") is improper. Additionally, Lawson and Cartwright state the ICWA is...