State of Iowa v. Johnson

• Decision Date: 25 August 1997
• Docket Number: No. C 97-3076-MWB.,C 97-3076-MWB.
• Citation: 976 F.Supp. 812
• Parties: STATE OF IOWA, Plaintiff, v. Jerry JOHNSON and Kent Johnson, Defendants.
• Court: U.S. District Court — Northern District of Iowa

976 F.Supp. 812

STATE OF IOWA, Plaintiff, v. Jerry JOHNSON and Kent Johnson, Defendants.

No. C 97-3076-MWB.

United States District Court, N.D. Iowa, Central Division.

August 25, 1997.

Shawn Mallen, Farm Manager of DeWaard Inv. Corp., Wright County, IA, for Plaintiff.

Jerry Johnson, Kent Johnson, pro se.

ORDER FOR REMAND TO STATE COURT

BENNETT, District Judge.

Various kinds of actions instituted in state court — even some criminal prosecutions — are removable to federal court. The pro se defendants in this state criminal trespass action assert that this action is one such case, because they fervently believe that their civil rights guaranteed by the United States Constitution have been violated in the course of their prosecution. A federal statute dictates that this court must make a prompt determination of whether this action falls within one of the limited categories of removable criminal prosecutions and must summarily remand the action to state court if it is not removable.

I. BACKGROUND

This matter comes before the court pursuant to pro se defendants' July 31, 1997, "Notice Of Remand [sic] Of The Wright County District Court, State of Iowa, Case" and the defendants' "Notice Of Remand [sic] To The United States District Court of Iowa Sioux City Division and Motion [To] Stay All Orders Pending Remand [sic]" filed the same date. Although the State of Iowa has not yet responded to what the court construes to be a notice of removal and a motion to stay state court proceedings, this court nonetheless finds that it must "examine the notice promptly" to see whether "it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted." 28 U.S.C. § 1446(c)(4). If the court finds that removal should not be permitted, the court is required to "make an order for summary remand." Id. The court finds that summary remand is indeed required in this case.

The notice of removal and attached documents reveal that defendant Jerry Johnson has been charged with trespass, a simple misdemeanor, in violation of Iowa Code §§ 716.7 and 716.8. The record does not reveal what, if any, charges have been filed against Kent Johnson. Trial of the trespass charges against Jerry Johnson was scheduled for July 18, 1997, before a magistrate of the Iowa district court. The trial was subsequently rescheduled for July 16, 1997. On July 15, 1997, defendant Jerry Johnson filed a motion to continue the trial, but the record does not reveal whether that motion was granted, if the trial indeed took place, or what verdict, if any, was rendered.

The notice of removal cites no statute as authority for removal of this state criminal proceeding to federal court. However, it does allege as grounds for removal that the State of Iowa has deprived defendants of unspecified civil rights under the Fifth and Fourteenth Amendments to the United States Constitution, and "inflict[ed] malicious prosecution" by "acts of conspiracy" without granting unspecified rights guaranteed by the First, Fifth, Sixth, and Fourteenth Amendments in violation of 42 U.S.C. §§ 1985(3) and 1986. The companion notice and motion for stay explains further that defendants allege that they "were denied `due process' and `equal protection of the laws' as United States citizens" in violation of the Fifth Amendment, that the "administrator magistrate" violated the defendants' civil rights "pursuant to Title 42 U.S.C. Sec. 1983," and that the magistrate denied the defendants their "right to defend" by "refusing evidence, producing witnesses and the rights to full discovery in a criminal matter showing extreme prejudices and bias in `acts of conspiracy' with citizens o[r] officials of the State of Iowa" allegedly "in violation" of 42 U.S.C. §§ 1985(3) and 1986. Defendants stated in the notice of removal and motion for stay that they would provide further factual statements in support of their removal of this action within fourteen days of the filing of their notice of removal. However, no further factual allegations in support of removal were filed within the time specified by the Johnsons.

II. LEGAL ANALYSIS

A. The Motion To Stay State Court Proceedings

The motion for stay of the state court proceedings shall be disposed of first. Pursuant to 28 U.S.C. § 1446, "[t]he filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded." 28 U.S.C. § 1446(c)(3) (emphasis added). A stay of the proceedings in state court, with the exception of the stay on entry of a judgment of conviction, would be contrary to this statutory language. Therefore, the motion to stay the state court proceedings prior to judgment will be denied.

Furthermore, no stay of any entry of judgment of conviction is appropriate in this case, because the notice of removal is untimely. Section 1446(c)(1) of Title 28 provides as follows:

A notice of removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.

28 U.S.C. § 1446(c)(1) (emphasis added). The record reveals that the criminal complaint in this action was filed on May 8, 1997, and that Jerry Johnson's initial appearance, including his consent to trial and imposition of sentence in absentia if he fails to appear for trial, occurred on May 16, 1997. Thus, the thirty-day period for removal of this action expired by June 16, 1997, approximately forty-five days before the defendants sought to remove this action.

The Sixth Circuit Court of Appeals found that it follows from the timeliness requirements of 28 U.S.C. § 1446(c)(1) "that a late filing without leave of federal court is not a `properly' filed notice of removal, and the civil removal cases — which hold that properly filed petitions automatically effect the removal and divest the state court of jurisdiction — do not apply." Seaton v. Jabe, 992 F.2d 79, 81 (6th Cir.), cert. denied, 510 U.S. 871, 114 S.Ct. 200, 126 L.Ed.2d 157 (1993). In Seaton, the Sixth Circuit Court of Appeals held that, because no timely notice of removal was filed, the state court properly convicted the defendant, despite his attempt to remove the action to federal court. Id. Thus, in this case, where the notice of removal is also untimely, the proceedings in state court may also proceed to judgment of conviction, despite the defendants' attempts to remove the action, and no stay of any part of the proceedings is appropriate, unless the court finds that the action is otherwise removable and waives the timeliness requirement.

B. The Notice Of Removal

As was mentioned at the outset of this decision, pursuant to 28 U.S.C. § 1446(c)(4), the court must "examine the notice [of removal] promptly," and "[i]f it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1446(c)(4). The court finds several reasons, clearly apparent on the face of the notice and supporting documents, why this action must be summarily remanded. First, as noted above, the notice of removal was untimely filed under 28 U.S.C. § 1446(c)(1). The court concludes that this flaw, apparent on the face of the notice of removal, means that removal of this action should not be permitted, and this action is therefore subject to summary remand pursuant to 28 U.S.C. § 1446(c)(4), unless some exception to the timeliness requirement is also apparent.

There is one exception to the timeliness requirement of 28 U.S.C. § 1446(c)(1). As the Sixth Circuit Court of Appeals also explained, "section 1446(c)(1) prohibits a late filing unless the federal court first grants the petitioner leave after the petitioner establishes `good cause.'" Seaton, 992 F.2d at 81; see also 28 U.S.C. § 1446(c)(1) (the United States district court may grant the defendant leave to file a notice of removal at a later time "for good cause shown"). The defendants in this case did not request leave to file an untimely notice of removal before attempting to do so. The court doubts that the defendants' pro se status is sufficient to establish "good cause" to grant them leave to file a late notice of removal — even though they were unlikely to be aware of the timeliness requirement — because pro se defendants are not so easily excused from other timeliness requirements. Cf. Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir.1996) (pro se status does not "excuse [a party] from complying ... with the Federal Rules of Civil Procedure."); Carman v. Treat, 7 F.3d 1379, 1381 (8th Cir. 1993) (citing Kurkowski v. Volcker, 819 F.2d 201, 204 (8th Cir.1987)). However, assuming for the sake of argument that "good cause" for a tardy notice of remand exists in this case, see 28 U.S.C. § 1446(c)(1) (excusing tardiness upon a showing of "good cause"), and assuming further that it is not fatal to the assertion of such "good cause" that the defendants failed to seek leave of the court before filing an untimely notice of removal, see Seaton, 992 F.2d at 81 ("[S]ection 1446(c)(1) prohibits a late filing [of a notice of removal] unless the federal court first grants the petitioner leave after the petitioner establishes `good cause'" emphasis added), the court will pass on to other grounds for summarily remanding this action to state court.

Turning to the adequacy of grounds for removal apparent from the face of the notice of removal and the documents filed in support of removal, see 28 U.S.C. § 1446(c)(4) (directing that the federal court must "promptly" examine the face of the notice and supporting...