Khramova v. Van Ness
| Decision Date | 06 April 2022 |
| Docket Number | Civil Action 22-10300-NMG |
| Parties | ANTONINA KHRAMOVA, Plaintiff, v. HEATHER VAN NESS, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
REPORT AND RECOMMENDATIONS ON DEFENDANT'S MOTION TO DISMISS (#9); PLAINTIFF'S MOTIONS TO REMAND (##13 22); AND PLAINTIFF'S MOTIONS FOR VARIOUS FORMS OF RELIEF (##11; 12; 15; 21; 23; 24)[1]
This case stems from actions taken by the Walpole Police, apparently in response to reports concerning the welfare of plaintiff's children, including her newborn baby. On December 1, 2021, Antonina Khramova filed a complaint, pro se, in the Norfolk Superior Court, #2182-cv-01076, against Walpole Police Officer Heather Van Ness seeking $100, 000 “for pain and suffering, severe emotional distress, trauma, anguish, anxiety, defamation, constant fear, stress, slander, inability to sleep, discrimination, [and] violation of human righ[ts].” (#7 at 1-2, 10, 13.)
On February 22, 2022, defendant removed the case from the Norfolk Superior Court to this court. (#1.) On March 8, 2022, defendant moved to dismiss under Fed.R.Civ.P. 12(b)(6). (##9; 10.) Plaintiff opposes the removal of this case to federal court and “ask[s] [the] court to revise/cancel court decision and transfer this case back to the Norfolk [S]uperior [C]ourt.” (#13 at 1.) As grounds for remand, plaintiff argues that the her. Id.; see also #22 (second motion for remand that is substantively identical to first motion, #13).
Defendant argues that this court has federal question jurisdiction because plaintiff (#19 at 1-2.) Defendant's notice of removal states: “This is an action alleging claims including those arising out of the Constitution of the United States.” (#1 at 1.)
For the reasons set out below, the court recommends that the case be remanded to the Norfolk Superior Court.
Plaintiff alleges that, on December 16, 2020, police “discriminated” against her when they received a false report based solely on her last name, which is Russian, and decided that she was involved in, and guilty of, “human trafficking, sexual slavery and children sexual exploitation [sic]” and that she has close ties with criminals in her country of origin, Russia, who assisted with her crimes. (#7 at 13.) According to plaintiff, these accusations are not true and police do not have evidence to support them. Id. Police “specifically target[ed]” her based on national origin. Id.
Plaintiff also alleges that during the eight months before she filed the complaint, police circled her house and stopped next to her driveway every day, intimidating and scaring her and her family, particularly her children. (#7 at 13.) Police forced plaintiff to protect her family from them by, among other things, making phone calls and writing letters, which was a stressful, traumatic, and time-consuming process. Id.
Plaintiff further alleges that on January 14, 2021, defendant and other police officers unlawfully invaded her house without a warrant or consent. (#7 at 11.) On that day, a social worker with the Massachusetts Department of Children and Families (“DCF”) told plaintiff that police had “strong evidence” that because of her close ties with criminals in Russia she was involved in human trafficking, sexual slavery, and child exploitation. Id. The social worker warned her that she had to let police inside her house and show them her children or they would force themselves inside, remove her children, and never allow her to see them again. Id.
Police, including defendant, then forcefully entered plaintiff's home; defendant went to the baby's room to check on plaintiff's baby. (#7 at 11.) Defendant included false statements in her police reports; plaintiff lists 19 “falsified accusations against [her] family that [defendant] made and reported to police and DCF.” Id. at 11-13. Plaintiff alleges that some of the facts defendant put in her reports, such as that the family did not have a car seat for the baby, no one saw the baby after discharge from the hospital and plaintiff missed the baby's doctor's appointment, and that the baby's father was yelling at defendant, were “derogatory, defamatory, and slander.” Id. at 12 (“(2) and (3)”).[2] Plaintiff concludes:
Police officer Van Ness discriminated me and my family based on my origin. Police officer violated our constitutional rights and our human rights. She severely traumatized us, innocent people specially our children. She emotionally distressed me and my children. She put us, innocent people, in great pain and suffering. She falsified accusations against me and my family that were deformation of character and slander. I/We believe she is not qualified and don't deserve to be a police officer of our country, the United States of America and should be disciplined by permanent suspension from her position. I/The family should be paid $100, 000.00 for pain and suffering....
(#7 at 13.)
A defendant may remove to federal district court any civil action brought in a state court that could have been brought in the federal district court initially. 28 U.S.C. § 1441(a). See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Ortiz-Bonilla v. Federacion de Ajedrez de Puerto Rico, Inc., 734 F.3d 28, 34 (1st Cir. 2013). In the absence of diversity of citizenship, whether a civil action brought in a state court could have been brought in the federal district court depends on whether the action implicates “federal question” jurisdiction; that is, whether it “aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331; see Ortiz- Bonilla, 734 F.3d at 34.
When the defendant removes a case from state court, the defendant, not the plaintiff, bears the burden of making a “colorable” showing that federal question jurisdiction exists. Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999) (quoting BIW Deceived v. Local S6 Indus. Union of Marine & Shipbuilding Workers of Am., 132 F.3d 824, 831 (1st Cir. 1997)); see also Rossello-Gonzalez v. Calderon-Serra, 398 F.3d 1, 11 (1st Cir. 2004). Generally, there are two types of federal question jurisdiction cases: the “direct” federal question case in which the plaintiff pleads a cause of action that is premised on federal law and the “embedded” federal question case in which the plaintiff pleads a cause of action that is premised on state law but which necessarily raises a substantial federal issue. Ortiz-Bonilla, 734 at 34-35; see Rhode Island Fishermen's All., Inc. v. Rhode Island Dept. of Env't Mgmt., 585 F.3d 42, 48 (1st Cir. 2009).
Either way, the “well-pleaded complaint rule” applies, requiring that the direct or embedded federal question be stated on the face of plaintiff's complaint, not determined by reference to other pleadings. See Ortiz-Bonilla, 734 F.3d at 34; Lopez-Munoz v. Triple-S Salud, Inc., 754 F.3d 1, 4 (1st Cir. 2014); Rhode Island Fishermen's All., 585 F.3d at 48. With certain exceptions, under the well-pleaded complaint rule, the plaintiff is the “master” of her claims; the defendant cannot remove the case if plaintiff's claims are premised on state law only. Lopez-Munoz, 754 F.3d at 4-5; see also Danca, 185 F.3d at 4.
The removal statute, which does not itself create jurisdiction, must be strictly construed. Danca, 185 F.3d at 4; see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941). If there is any ambiguity as to the source of law for plaintiff's claims, that ambiguity must be resolved against removal. Rossello-Gonzalez, 398 F.3d at 11. This is because the defendant bears the burden of showing that federal question jurisdiction exists and because there are important federalism concerns implicated by removal. Id.
Jurisdiction “can never be presumed, nor can it be conferred by acquiescence or consent;” the court is obligated to inquire, even if its jurisdiction has not been challenged by the parties. Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 17 (1st Cir. 2018); see, e.g., Tarr v. Town of Rockport, 405 F.Supp.2d 75, 77 (D. Mass. 2005); see also 28 U.S.C. § 1447(c). Whether federal question jurisdiction exists is determined as of the time of removal. Id. at 17; Tarr, 405 F.Supp.2d at 77. If the court has federal question jurisdiction over at least one of plaintiff's claims, it may assert supplemental jurisdiction over remaining state law claims that are premised on the same nucleus of operative facts. BIW Deceived, 132 F.3d at 833-834; see 28 U.S.C. § 1367(a).
To the extent that plaintiff is claiming that remand to the Norfolk Superior Court is necessary because defendant had to consult with her before removing and failed to, plaintiff is mistaken. A defendant seeking to remove a civil action from state court must file a notice of removal in the appropriate federal court, see 28 U.S.C. § 1446(a); “[p]romptly after” that, she must give “written notice” to plaintiff and file a copy of the notice of removal in the state court, see 28 U.S.C. § 1446(d). Plaintiff was not entitled to advance notice of removal and defendant did not have to seek her “input and consideration.” (#13 at 1); see Jessop v. General Motors Co., 178 F.3d 1294, 1999 WL 196529, at *1 (6th Cir. 1999) (unpublished); see also Quintier v. Ducey, #21-cv-00754-PHX-GMS (DMF), 2021 WL 2667532, *1 n.2 (D. Ariz. June 2, 2021).
Nevertheless the court recommends that plaintiff's motions to remand (##13; 22) be allowed because there is ambiguity as to the source of law for her...
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