Mehney-Egan v. Mendoza
| Decision Date | 30 November 2000 |
| Docket Number | No. 00-10209.,00-10209. |
| Citation | 124 F.Supp.2d 467 |
| Parties | Chris MEHNEY-EGAN, Plaintiff, v. Antonio MENDOZA, Jr., Larry Kersten and City of Rose City, Defendants. and Antonio Mendoza, Jr., Plaintiff, v. Chris Mehney-Egan, Larry Kersten, Bob Barber, Jeffrey Erickson, Fred McKinnon, Patricia Ann Hebert, Patricia Katria Allard, Rosolin Russell, Glen's Market of Rose City, Glen's Market or Corp. Hqt. of Gaylord, Ogemaw Sheriff's Dept., Ogemaw County, Rose City, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Before the Court is a motion by plaintiff, Chris Mehney-Egan, to remand this civil action to Ogemaw County, Michigan Circuit Court.
Plaintiff originally filed this action in the Ogemaw County Circuit Court on January 10, 2000 naming as defendants Antonio Mendoza, Jr. ("Mendoza"), the City of Rose City ("Rose City"), and Larry Kersten, the former Rose City police chief ("Kersten"). In her complaint, plaintiff contends that Mendoza had threatened her several times prior to August 15, 1998 prompting her to contact Chief Kersten to request protection. She alleges that she provided Kersten with evidence demonstrating that Mendoza would act violently toward her, and that Kersten instructed the plaintiff to deal with Kersten directly rather than contact other law enforcement officers. The plaintiff alleges further that Mendoza assaulted her on August 15, 1998 causing her to suffer gunshot wounds and other physical injuries. The complaint includes counts of assault and battery against Mendoza in which plaintiff seeks compensatory and exemplary damages, negligence against Kersten and Rose City for failing to prevent Mendoza's attack on the plaintiff, violation of the Elliot Larson Civil Rights Act ("ELCRA"), M.C.L. § §§ 37.2101, et seq., against Kersten and Rose City for gender discrimination by the police department against female crime victims, discrimination based on the Michigan Constitution against Kersten and Rose City, and a violation of the Michigan Constitution's due process clause against Kersten and Rose City resulting from the alleged failure to pursue evidence which plaintiff furnished to Kersten before the assault showing Mendoza's violence, failure to follow up on the evidence, investigate the evidence or enforce personal protection orders issued to the plaintiff against Mendoza.
Kersten and Rose City answered the complaint on March 13, 2000. At that time, both defendants were represented by the same attorney. On April 3, 2000, Mendoza, a prison inmate, filed his pro se answer to the complaint.
On May 8, 2000, the Ogemaw County Clerk issued a summons to Mendoza in a case entitled Antonio Mendoza, plaintiff, v. Chris Mehney-Egan, Larry Kersten, Bob Barber, Jeffrey Erickson, Fred McKinnon Hale, Patricia Ann Hebert, Rosolin Russell, Patricia Katria Allard, Glen's Market of Rose City, Glen's Market Corp. Hqt. of Gaylord, Ogemaw County Sheriff's Department, and Ogemaw County, Rose City, defendants. The clerk did not assign a case number and none appears on the summons. However, Mendoza checked the box on the summons which states:
Mendoza prepared a hand-written pleading entitled "Cross-complaint of defendants and plaintiff" which is dated April 11, 2000 and file-stamped by the Ogemaw County Clerk on June 21, 2000. The "cross-complaint" bears the same caption as the summons and likewise has no case number.
In his "cross-complaint," Mendoza attempts to turn the tables on the plaintiff and other city and county public officials by contending that those officials helped plaintiff stalk Mendoza who himself was a victim of threats by the plaintiff, and that they failed to prosecute plaintiff's friends for trying to run Mendoza over in a parking lot. Mendoza likewise complains that personnel at Glen's Market in Rose City denied him entry into the market and refused to hear complaints of employees harassing him. Mendoza also contends that Ogemaw County Prosecutor, Fred McKinnon violated Mendoza's civil rights in violation of 42 U.S.C. § 1983, as did former Ogemaw County Sheriff Deputy Jeffrey Erickson. Mendoza claims that Kersten violated 42 U.S.C. § 1983 "by discriminate [sic] practices, unconstitutional violations of the 4th and 14th Amendments by his special relationship with [plaintiff] on state constitutional violations." Finally, Mendoza contends that Rose City and various public officials failed to protect him as a potential crime victim because they discriminated against male assault victims in violation of the Elliot Larson Civil Rights Act and they failed to preserve evidence regarding the violation of plaintiff's personal protection order.
On June 2, 2000, Rose City, represented by new counsel, filed a notice of removal in this court contending that Mendoza's cross-claims against this defendant involved a federal question in that defendant, Mendoza, had alleged, pursuant to 42 U.S.C. § 1983, that this defendant violated his civil rights under the United States Constitution. (Notice of Removal ¶ 4). Citing 28 U.S.C. §§ 1441 and 1446, Rose City contends that this Court has jurisdiction over the entire case because Mendoza's "cross-claim" constitutes an "action ... over which the District Courts of the United States have been given original jurisdiction pursuant to 28 U.S.C. § 1331." (Notice of Removal ¶ 5). Rose City further contends that the plaintiff's claims in plaintiff's original complaint are separate and independent from the claims made by Mendoza in the "cross-complaint" and therefore the plaintiff's complaint is removable under 28 U.S.C. § 1441(c). (Notice of Removal ¶ 11).
On June 29, 2000, the plaintiff filed her motion to remand, in which she argues that Mendoza's "cross-complaint" was not properly filed in the Ogemaw County Circuit Court at the time Rose City filed its removal petition in this court. She also contends that removal was improper because all of the cross-claim defendants did not concur in removal. Finally, plaintiff argues that a cross-defendant is not within the class of parties entitled to effectuate removal under 28 U.S.C. § 1441. Plaintiff requests costs against Rose City pursuant to 28 U.S.C. § 1447(c).
The Court finds that the parties have adequately set forth the relevant law and facts in their briefs and motion papers, and oral argument would not aid in the disposition of the instant motion. See, E.D. Mich. LR 7.1(e)(2). Accordingly, the Court ORDERS that the motion be decided on the briefs submitted. For the reasons stated below, the Motion to Remand is GRANTED.
The provisions of 28 U.S.C. § 1441 require a defendant to show that a district court would have original jurisdiction over a civil action in order to invoke the Court's removal jurisdiction. Long v. Bando Mfg. of America, Inc., 201 F.3d 754, 757 (6th Cir.2000). The party seeking removal bears the burden of demonstrating that the district court has original jurisdiction. Id., Conrad v. Robinson, 871 F.2d 612, 614 (6th Cir.1989). "Because lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts resolved in favor of remand." Brown v. Francis, 75 F.3d 860, 864-65 (3d Cir.1996). See also, Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir.1989).
In seeking removal, Rose City asks this Court to treat Mendoza's "cross-complaint" as a complaint and view Rose City as a "defendant" for the purpose of 28 U.S.C. § 1441, rather than as a cross-defendant.
Rose City filed its removal petition on June 2, 2000. According to the Ogemaw County Clerk date stamps on papers furnished to this Court, the only paper other than his answer which Mendoza had filed in state court was a summons. The summons by itself does not constitute a "civil action" within the meaning of section 1441(a) and therefore cannot provide the basis for removal of the entire action to this court.
Even if this Court were to view Mendoza's later-filed "cross-complaint" as somehow relating back to the date stamp on the summons,1 there are several reasons which preclude removal.
First, the pleading itself — the "cross-complaint" — was not filed in conformity with the Michigan Court Rules. Plaintiff observes that Mich.Ct.R. 2.203(D) permits the filing of a counter-claim or a cross-claim only with an answer or as an amendment under Mich.Ct.R. 2.118. The latter rule requires leave of court for amended pleadings filed beyond fourteen days after the original pleading. Mendoza's answer was filed in state court on April 3, 2000. Because Mendoza did not obtain leave of court to file his summons on May 8, 2000 or his "cross-complaint" on June 21, 2000, those pleadings are effectively a nullity. Rose City argues in opposition that there is a distinction to be drawn for purposes of removal between a state court pleading that was "filed" and one that was "properly filed," the former being sufficient for purposes of removal. Rose City cites no authority for this proposition, and the Court finds the position untenable inasmuch as it would render nugatory the provisions of the Michigan Court Rules requiring judicial permission to file amended pleadings after the amendment-by-right period had expired. Mendoza's "cross-complaint" was not properly filed, and consequently "there was no proceeding in the state court which was capable of being removed." FDIC v. Klayer, 519 F.Supp. 889, 890 (E.D.Ky.1981).
Second, the procedure for removal under 28 U.S.C. § 1446 requires the "defendant or defendants desiring to remove a civil action...
To continue reading
Request your trial