Parker v. Brown
| Decision Date | 12 September 1983 |
| Docket Number | No. C-1-83-734.,C-1-83-734. |
| Citation | 570 F. Supp. 640 |
| Parties | Patricia PARKER, Plaintiff, v. Malvena BROWN, Defendant, v. UNITED STATES of America, Intervenor, v. Patricia PARKER; State of Ohio Bureau of Employment Services, Additional Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Albert H. Neman, Cincinnati, Ohio, for plaintiff.
Marvin Kraus and Donald M. Lerner, Cincinnati, Ohio, for Brown.
Nicholas J. Pantel, Asst. U.S. Atty., Cincinnati, Ohio, for United States.
Paul C. Koscik, Asst. Atty. Gen., Bureau of Employment Services, Columbus, Ohio, for State of Ohio, Bureau of Employment.
This matter came on for hearing on the motion of intervenor United States of America for an Order declaring it to be a proper party to this action, or, alternatively, to alter or amend the May 12, 1983 entry of the Hamilton County Court of Common Pleas setting aside its prior order allowing intervention (doc. 5); defendant Malvena Brown's memorandum in opposition (doc. 9); and the reply of intervenor United States of America (docs. 7 and 10). We also considered defendant Brown's motion to remand (doc. 4) and intervenor's opposition (doc. 8). Also before the Court is defendant Brown's supplemental memorandum including the affidavit of Donald M. Lerner (doc. 13).
This case involves certain real estate held in the name of defendant Malvena Brown in which the United States claims an interest arising out of taxes due. The following facts have been derived from the affidavits of Jonathan B. Forman of the Justice Department (doc. 5), Marvin Kraus (doc. 9), and Donald M. Lerner (docs. 9, 13) and supporting documents.
This action was commenced in the Common Pleas Court of Hamilton County, Ohio. On March 29, 1983, the United States' motion to intervene and to add additional parties was served upon counsel for the parties in that case. Service to defendant Brown was in the form of a copy sent to Marvin Kraus, her original counsel, of a letter from the Justice Department to the United States Attorney in Cincinnati. That letter, dated March 29, 1983, requested the U.S. Attorney to file the motion in the Hamilton County Court of Common Pleas, and stated that the motion had been served upon the parties. Mr. Kraus went to the Hamilton County Court House on April 6, 1983 where he checked the case file. However, none of the documents referred to in the letter from Justice Department appeared in the case file; Mr. Kraus, therefore, did not file any opposition to this motion to intervene.
On April 4, 1983, the order proposed by the United States was entered by the state court. However, none of the parties was aware of the order until May 6, 1983. Upon learning of the order, Donald M. Lerner, who was to be substituted for Kraus as counsel for Brown, telephoned the Justice Department and asked if the United States would be amenable to rescinding the order allowing it to intervene. Mr. Forman advised Mr. Lerner that the Justice Department was opposed to setting aside the April 4 order and wished to participate in any hearing on a motion to set aside or rescind that order. Mr. Forman further advised that the United States intended to remove this matter to federal court.
On May 11, 1983, the United States filed a petition for removal in this Court, along with supporting documents. The Notice of Filing of Petition for Removal was filed with the state court at 9:27 A.M., on May 12, 1983. Also, on that date, the Court of Common Pleas entered an ex parte Entry Setting Aside Order Allowing Intervention (May 12 entry); that entry, however, is not time-stamped.
Before the May 12 entry was entered, on May 6, 1983 Mr. Lerner served opposing counsel with a copy of the proposed order setting aside the earlier order. On May 10, 1983, he left the proposed order with the constable of the state court for the judge's consideration. Subsequently, the judge entered the May 12 entry.
On May 25, 1983, defendant Brown filed a motion to remand with this Court (doc. 4). The following day the United States moved for an order declaring it to be a party to this action, or, alternatively, to alter or amend the May 12 entry and to reinstate the April 4 entry allowing the United States to intervene (doc. 5).
A review of the United States' complaint for intervention discloses that it seeks to reduce certain tax assessments to judgment, to assert its claim upon the real estate held in the name of defendant Brown, and to foreclose its liens against said property, pursuant to Section 7401 of the Internal Revenue Code of 1954. It is undisputed that the United States has the right to intervene in cases involving property in which the United States has an interest. 26 U.S.C. § 7424. It is also undisputed that the United States could have brought its complaint initially in federal court. However, as the property in issue was already the subject of a pending state court action, the United States chose to intervene in that action and then to remove pursuant to § 7424 and 28 U.S.C. § 1444 and/or § 1441.
The narrow issue we must decide is whether the United States properly removed this case. The United States maintains that it effected removal prior to the May 12 entry setting aside the earlier order allowing the United States to intervene. If the May 12 entry was entered after the notice of filing of petition for removal was filed at 9:27 A.M., then the entry would have no effect as removal would have been completed prior to the action of the state court. 28 U.S.C. § 1446(e). Unfortunately, it is impossible to ascertain at what point the May 12 entry was entered as such entries are not time-stamped by the state court.
The statute in question, 28 U.S.C. § 1446(e), provides:
Promptly after the filing of such petition in the federal district court ... the defendant ......
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