Summary
denying motion for costs and attorney fees "perhaps only in light of the defendant's pro se status"
Summary of this case from Wells Fargo Bank, N.A. v. StephensOpinion
01 Civ. 11507 (HB)
June 18, 2002
OPINION ORDER
Pro se defendant in a state matrimonial action filed a Notice of Removal on December 17, 2001. Plaintiff moves pursuant to 28 U.S.C. § 1447(c) to remand to state court and seeks attorney fees and costs. For the following reasons, the plaintiff's motion is GRANTED, in part, and DENIED, in part.
I. DISCUSSION
The plaintiff, Emily Bleiberg ("Bleiberg") and the defendant Jeffrey Altvater ("Altvater") have been engaged in an ongoing divorce and child custody case in the New York State courts since 1994. Almost two years ago, the New York State Supreme Court entered a protective order prohibiting Altvater from having contact with his ex-wife, Bleiberg, her boyfriend, and the parties' 10-year old daughter pending a psychiatric evaluation of both the parties and the child. Altvater appealed the order and it was affirmed by the New York Appellate Division, First Department, which found that "the record in this matter fully warranted the court's determination that it was in the best interests of the parties' child to suspend defendant father's visitation with [his daughter] pending the court's receipt and review of a medical/psychiatric evaluation of the parties . . ." Since then, the Supreme Court has several times extended the protective order, and Beliberg has refused to submit to an evaluation. In an apparent effort to collaterally attack the judgment, Altvater filed three lawsuits, two in state court and one in federal court in New Jersey, all of which were dismissed. The instant action appears to be Altvater's latest attempt to overturn the protective order, this time by seeking to remove the action pursuant to 28 U.S.C. § 1441, 1442 and 1443.
On a motion to remand, the party seeking to sustain removal from state to federal court, in this instance Altvater, shoulders the burden of demonstrating that removal was proper. Kleinberg, Kaplan, Wolff Cohen, P.C. v. Brandaid Connunications, 2002 WL 826955, at *1 (S.D.N.Y. April 30, 2002) (Baer, J.) (remanding for failure to meet the requirements of diversity jurisdiction) If that party fails to sustain its burden, then the case must be remanded back to state court. Id. Altvater fails to overcome his burden on several levels.
Atwater claims, in a string of allegations that are hardly clear, that removal is proper on the basis that the New York State domestic relations statutes are unconstitutional. Additionally, Atwater asserts that the statutes and the prior decisions of the state court have violated the "Nuremberg Code" in that "they require that Atwater be coerced into unnecessary medical procedures . . ." (Altvater Aff. at 2).
I can only assume that Atwater's reference to the "Nuremberg Code" as grounds for removal is a puzzling attempt to equate the state court's requirement that he submit to a forensic evaluation with the legal principles associated with the Nuremberg Trials of World War II — a nonsensical suggestion, to say the least.
It is beyond question that Atwater's removal was untimely. 28 U.S.C. § 1446(b) requires a petition for removal of a civil action to be filed within thirty days after the receipt by the defendant of the initial pleading that provided the basis for removal. 28 U.S.C. § 1446(b). It has been more than eight years since Altvater was sewed with the initial pleadings, and almost two years from the entry of the state court's temporary injunction. Removal therefore fails on this ground alone. I also note that the timeliness issue, while raised in Bleiberg's papers, is nowhere addressed in Atwater's.
Aside from the untimely nature of his removal, and without examining the merits of his claims, I find that Atwater's removal additionally fails under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine holds that "inferior federal courts lack subject matter jurisdiction over cases that effectively seek review of judgments of state courts and that federal review, if any, can occur only by way of a certiorari petition to the Supreme Court." Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002) (citation omitted). To the extent that Atwater's claims can be construed as raising constitutional violations, his allegations are clearly directed at overturning the prior judgments and decisions of the state court, or in effect appealing the state court judgments, and are therefore "inextricably intertwined" with those proceedings. See George v. Letren, 1998 WL 684857, at *3 (S.D.N.Y. Sept. 30, 1998) (Batts, J.) (finding no subject matter jurisdiction under Rooker-Feldman for claims "directed solely at perceived error by the state courts in reaching their decisions in the underlying paternity and child support actions"). Accordingly, Atwater fails under Rooker-Feldman. See Id at 56 (holding that "there is no question that Rooker-Feldman bars [plaintiff's] challenges to the family court's decisions regarding custody, neglect, and visitation").
As a backdrop to my conclusions above, I also bear in mind the Circuit's holding with respect to the exercise of jurisdiction over actions that concern issues of child custody or matrimony. See American Airlines, Inc. v. Block, 905 F.2d 12, 14 ("A federal court presented with matrimonial issues or issues "on the verge" of being matrimonial in nature should abstain from exercising jurisdiction so long as there is no obstacle to their full and fair determination in state courts.").
With respect to plaintiff's request for attorney fees and costs under 28 U.S.C. § 1447(c), I decline to find any here, although perhaps only in light of the defendant's pro se status. See Morgan Guar. Trust Co. of New York v. Republic of Palau, 971 F.2d 917, 923-24 (2d Cir. 1992) (noting that 28 U.S.C. § 1447(c) "affords a great deal of discretion and flexibility to the district courts in fashioning awards of costs and fees"). It is worth mention, however, that although I am without the benefit of a clear understanding of the merits of the underlying matrimonial litigation, I nevertheless suspect that the costs of Atwater's untimely and fruitless effort here may have been more productively spent in furthering the interests of his young daughter.
II. CONCLUSION
For the foregoing reasons, the plaintiff's motion to remand this case to state court is GRANTED, and the plaintiff's motion for attorney fees and costs is DENIED. The Clerk of the Court is instructed to close any pending motions close this e and remove it from my docket.