State ex rel. Nixon v. Moore

Decision Date01 July 2003
Docket NumberNo. WD 61619.,WD 61619.
Citation108 S.W.3d 813
PartiesSTATE of Missouri, ex rel. Jeremiah W. (Jay) NIXON, Attorney General, State of Missouri, Respondent, v. Edward Allen MOORE, Appellant.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Cole County, On Rehearing,1 Byron L. Kinder, Judge.

Appellant Pro se.

Jeremiah W. (Jay) Nixon, Attorney General, Troy Allen, Asst. Attorney General, Jefferson City, MO, for Respondent.

Before RONALD R. HOLLIGER, P.J., PAUL M. SPINDEN, and JAMES M. SMART, JR., JJ.

PER CURIAM.

Edward Allen Moore appeals the summary judgment ruling in action Med by the State of Missouri against Moore under the Missouri Incarceration Reimbursement Act. We reverse the grant of summary judgment and remand the case.

Statement of Facts

In 1991, Moore was convicted of assault in the first degree, § 565.050 RSMo.1986, and sentenced as a Class X offender, § 558.019, RSMo.1986, to thirty years in the Missouri Department of Corrections. See State v. Moore, 882 S.W.2d 253 (Mo. App.1994). Moore filed a 42 U.S.C. § 1983 lawsuit against Correctional Medical Services ("CMS") and other defendants in federal court based on allegations that he received inadequate medical care in 1994 while incarcerated in Missouri. A jury trial was held. The jury found that CMS was liable for $9,800 for indifference to Moore's serious medical needs; the other defendants were either dismissed before trial or were found not liable by the jury. The United States Court of Appeals for the Eighth Circuit affirmed the verdict on August 7, 2001. Moore v. Jackson, 16 Fed. Appx. 517 (8th Cir.2001) (unpublished).

On October 3, 2001, the State of Missouri filed a petition against Moore in the Circuit Court of Cole County for reimbursement of the costs of Moore's incarceration under the Missouri Incarceration Reimbursement Act ("MIRA"), §§ 217.825 to 217.841, RSMo.2000. The same day, the Circuit Court issued an order to show cause and an ex parte order appointing a receiver. The Circuit Court directed Moore to answer by November 26, 2001. Moore attempted to file a notice of removal to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1446. The notice of removal was filed on October 29, 2001, in the Circuit Court, but due to confusion with some other cases Moore had pending in the federal court, the clerical staff in the U.S. District Court did not file the notice of removal but instead sent it back to Moore unified. Moore again attempted to file the notice of removal. On November 21, 2001, the U.S. District Court docketed Moore's motion for leave to file in forma pauperis,2 and noted that Moore had attached the notice of removal, but delayed entering the notice of removal until the motion for leave was granted. On December 19, 2001, the U.S. District Court granted Moore's motion for leave to file in forma pauperis and entered the notice of removal.

Moore's notice under 28 U.S.C. § 1446 cited diversity jurisdiction under 28 U.S.C. § 1332, civil rights jurisdiction under 28 U.S.C. § 1343, and federal question jurisdiction under 28 U.S.C. § 1331. The State filed a motion to remand the case back to state court, contending the case did not qualify for federal jurisdiction. On February 8, 2002, the U.S. District Court ("federal court") entered an order granting the State's motion for remand. On February 11, 2002, Moore filed a motion for reconsideration. On April 5, 2002, the federal court entered an order denying Moore's motion for reconsideration. Moore filed another motion for reconsideration on April 8, 2002. On April 17, 2002, the Clerk of the federal court mailed a certified copy of the remand order to the Circuit Court ("state court") pursuant to 28 USC § 1447. The order was received by the state court and entered on the docket sheet on April 19, 2002.

Meanwhile, the state court had been proceeding with the MIRA case as though Moore had not removed the case to federal court. The state court received the notice of removal on October 29, 2001. On November 26, 2001, the state court held a hearing, and scheduled a second hearing for December 17, 2001. The State, in the meantime, filed a motion for summary judgment on December 6, 2001. The state court conducted additional hearings on December 17, 2001, and January 28, 2002. The hearings were ignored by Moore.

On January 31, 2002, the state court made a docket entry that the case had been remanded from the federal court. We cannot tell the source of this docket entry, and the entry was in fact erroneous. The federal court did not enter a remand order until about a week later, February 8, 2002. In any event, the state court scheduled a hearing on the State's motion for summary judgment on March 25, 2002. On March 27, 2002, the state court entered summary judgment in behalf of the State. The judgment awarded the State 90% of Moore's assets, which included the $9,800.00 he had been awarded against CMS. On April 19, the state court received the certified order from the federal court remanding the case back to the state court. The same day, Moore filed a motion for a new trial in the state court, alleging that the court had made numerous errors and did not have jurisdiction to enter the judgment. The motion was denied. Moore now appeals.

Analysis

Moore raises twelve points on appeal. We need not address all points, as one point supports reversal.

Moore claims that the state court erred in entering a judgment against him because the state court lacked subject matter jurisdiction. Moore argues that the judgment was entered while the case was still in federal court, and, thus, the judgment was void ab initio.

The federal courts are courts of limited jurisdiction, empowered to hear only such cases as are provided by the Constitution and the Constitutionally-authorized acts of Congress. Article III, section 2 of the Constitution defines the jurisdiction of the federal courts. Although Article III does not in terms permit the removal of cases to federal courts, removal was authorized by the First Judiciary Act in 1789 as "necessary and proper" to the execution of the tasks delegated the national government. While initially it was not clear that the states needed to accede, in doubtful cases, to the federal court's view of their own jurisdiction, it is now well-established that federal courts have "[j]urisdiction to determine jurisdiction." 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3536, at 535 (2d ed.1984). 28 U.S.C. § 1446 eliminates conflict between the two systems of courts by specifying that, once removal has been procedurally effected, any subsequent state action is void, even if it turns out the case was removed improperly. Ward v. Resolution Trust Corp., C.A.8 (Ark.) 1992, 972 F.2d 196, 198 (8th Cir.1992), cert. denied 507 U.S. 971, 113 S.Ct. 1412, 122 L.Ed.2d 783 (1993); Cavanagh v. Cavanagh, 119 R.I. 479, 380 A.2d 964, 967 (1977). Once the federal court determines that the case is not appropriate for federal jurisdiction, the court is to remand the case to the state court for further proceedings. 28 U.S.C. § 1447. The remand ends the jurisdiction of the federal court. Id.

The question in this case is the date on which the state court regained jurisdiction after the removal to the federal court. The order remanding the case to the state court was signed on February 8, 2002. The remand order was certified and mailed to the state court pursuant to 28 U.S.C. § 1447 on April 17, 2002. In the interim, the judgment in the state court was entered against Moore on March 27, 2002.

Moore argues that the remand was not effective until April, when the remand order was certified and mailed to the state court, and, thus, the state court's judgment entered in March was void. Moore also claims that the certification and mailing of the remand order determined the date of service from which he should have been given the statutory amount of time, under section 217.835.2, RSMo., to file an answer to the MIRA petition. The State, citing no legal authority and providing no analysis, concludes that the case was remanded on February 8, 2002, and therefore asserts that the state court properly had jurisdiction when it issued the judgment.

The issue, though seemingly simple, is not so easily resolved. No Missouri court has previously addressed the issue of exactly when jurisdiction returns to the state court. Removal is accomplished under 28 U.S.C. § 1446. Subsection (d) of that statute provides that once removal has been effected, the state court "shall proceed no further unless and until the case is remanded." Then the procedure for remand is described in 28 U.S.C. § 1447(c), which states:

If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

(emphasis added).

A plain reading of § 1447(c) suggests that the federal court does not relinquish jurisdiction back to the state court until a certified copy of the remand order has been mailed. We note also that § 1446(d) says that the state court shall not proceed "until the case is remanded." It does not say "unless and until an order of remand is entered." Thus, § 1446(d) does not support the argument that the entering of the order is the operative event in revesting jurisdiction in state court.

The vast majority of federal courts that have confronted this issue have held that the mailing of a certified copy of the remand order is the operative event in the return to state court jurisdiction. See Fed. Deposit Ins. Corp. v. Santiago Plaza, 598 F.2d 634, 636...

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  • Davis v. Kempker, WD 64237.
    • United States
    • Missouri Supreme Court
    • August 2, 2005
    ...such payment for deposit in the general revenue fund until the fees are paid in full. Id. Davis relies on State ex rel. Nixon v. Moore, 108 S.W.3d 813 (Mo.App. W.D.2003). In that case, inmate Moore argued that the trial court erred in ordering him to pay the full filing fee for his appeal. ......

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