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concluding that there was no federal jurisdiction over action seeking to "overturn the judgments that have been issued in the state court and bankruptcy proceedings"
Summary of this case from Basic Capital Mgmt., Inc. v. Dynex Capital, Inc.Opinion
Civil Action No. 01-1886, Section "C"(2)
November 21, 2001
ORDER AND REASONS
This matter comes before the Court on motion to remand and dismiss filed by Michael Taylor. Having reviewed the record, the memoranda and the law, the Court has determined that the motion should be granted as follows.
The mover sought to satisfy a 1993 judgment from the 30th Judicial District Court, State of Louisiana, Parish of Vernon, in the amount of $154,000, in his favor and against Ursula M. Taylor and Lewis Edwards, through state court process. Ursula Taylor proceeds unrepresented in this matter. On June 19, 2001, she filed this notice of removal and application for habeas corpus cum causa seeking to stop the seizure of her assets by the mover. Specifically, she seeks: (1) a "stay" of the May 15, 2001, order of the Civil District Court for Orleans Parish, State of Louisiana issuing a writ of fieri facias and resulting in garnishment of her wages; (2) an "automatic stay" of the July 21, 2000, consent judgment of the United States Bankruptcy Court determining the state court judgment to be excepted from discharge from her bankruptcy; (3) a reduction in the amount of the 1993 state court judgment; and (4) a payment plan to satisfy the new reduced judgment.
This application will be considered identical in effect to the notice of removal.
Since the filing of the notice of removal, the state court has issued a garnishment judgment on October 10, 2001.
Ursula Taylor supports her removal with the argument that any judgment against her is unconstitutional because her due process rights were infringed due to ineffective counsel in the precedent state court and bankruptcy proceedings. She argues that there is both federal question jurisdiction and diversity jurisdiction.
Therefore, with regard to the garnishment proceeding originating in Civil District Court, Ursula Taylor removed in order to overturn the judgments that have been issued in the state court and bankruptcy proceedings. She does not argue that the garnishee is not her employer or otherwise indebted to her. The Court agrees with the mover that any "appeal" of the original state court judgment or the bankruptcy court judgment is unavailable due to the passage of time alone, ignoring any estoppel issues.
The Court notes that this district would be an inappropriate forum for removal of the original state court judgment.
In addition, the characterization of this matter given by Ursula Taylor clearly indicates that it is "a supplementary proceeding so connected with the original suit as to form an incident to it, and substantially a continuation of it." Barrow v. Hunton, 99 U.S. 80, 82-83 (1878)
If the proceeding is merely tantamount to the common-law practice of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review or an appeal, it would belong to the latter category, and the United States court could not properly entertain jurisdiction of the case. Otherwise, the Circuit Courts of the United States would become invested with power to control the proceedings in the State courts, or would have appellate jurisdiction over them in all cases where the parties are citizens of different States. Such a result would be totally inadmissible.Id. "As modern case law makes clear, the Barrow rule applies only when an action in federal court seeks to nullify or to enforce the judgment of a prior state court suit." Beighley v. F.D.I.C., 868 F.2d 776, 781 (5th Cir. 1989) (emphasis original). This is not a new suit "involving a new party litigating the existence of a new liability." Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979).
The alleged federal unconstitutionality of the state court and bankruptcy judgments is being raised by Ursula Taylor as a defense. This is not an adequate jurisdictional basis for a removed action. Wright, Miller Cooper, 14B Federal Practice Procedure § 3722 (West).
Finally, the Court is mindful that ambiguities are construed against removal. Id.
Accordingly,
IT IS ORDERED that the motion to remand and dismiss filed by Michael Taylor is GRANTED for lack or subject matter jurisdiction under 28 U.S.C. § 1447(c). This matter is hereby REMANDED to the Civil District Court for the Orleans Parish, State of Louisiana.