United States District Court, D. Delaware
Shahin, Dover, Delaware. Pro Se Plaintiff.
A. Griffith, Esquire, Whiteford, Taylor & Preston,
L.L.C., Wilmington, Delaware. Counsel for Dale Boney.
U.S. DISTRICT JUDGE:
Nina Shahin ("Shahin"), who proceeds pro
se, filed a formal petition for transfer of a case she
filed in the Court of Common Pleas for the State of Delaware
in and for Kent County, Shahin v. Boney, CA. No.
CPU5-14-000682. (D.I. 1) The petition was docketed as a
notice of removal. For the reasons discussed below, the Court
will summarily remand the case to die Court of Common Pleas
for die State of Delaware in and for Kent County.
FACTUAL AND PROCEDURAL BACKGROUND
filed this case in die Court of Common Pleas in September
2014 against Defendants Dale Boney ("Boney") and
State Farm Automobile Insurance Company ("State
Farm"). (D.I. 1) She alleged diat Boney, a police
officer for die City of Dover, issued her a citation and
fabricated a police report diat caused State Farm to deny
Shahin's claim for reimbursement for damages caused to
her vehicle as a result of an accident between Shahin and
anodier driver. (See D.I. 9-1 at 2) On April 13,
2016, die Court of Common Pleas granted Boney's motion to
dismiss by reason of immunity under die County and Municipal
Tort Claims Act, 10 Del. C. § 4011. Thereafter, Shahin
filed a motion for relief from judgment and requested a
transfer of the matter to this Court pursuant to 10 Del. C.
§ 1902. (D.I. 13-5 at 2-8) On July 19, 2016, the Court
of Common Pleas denied both the motion and the request.
(See id.) The Court of Common Pleas stated that,
"the plaintiffs claim has been adjudicated and based on
the face of the Complaint and the law, the Court had subject
matter jurisdiction over the plaintiffs claim. Furthermore,
the plaintiff failed to follow the proper procedure for
bringing her claim in federal court." (Id. at
on August 19, 2016, Shahin filed a "motion
'election' for initiation of the process to transfer
the case to federal court... under 10 Del. C. § 1902 and
42 U.S.C. § 1983." (D.I. 13-6 at 2-9) On January
23, 2017, the Court of Common Pleas denied Shahin's
"election, " noting that the claim against Boney
had been dismissed and there is no claim to transfer. (D.I.
13-7 at 2-3) In addition, the Court of Common Pleas explained
that 10 Del. C. § 1902 "only provides an avenue of
relief for the transfer of civil cases between State courts
for lack of civil jurisdiction. Section 1902 does not provide
for the transfer of cases to federal courts."
(Id. at 3) Shahin moved for reconsideration.
(Id. at 4-8) On March 28, 2017, the Court of Common
Pleas denied the motion for reconsideration of the denial of
transfer. (Id. at 9)
then filed the petition to transfer (filed as a notice of
removal on April 11, 2017). (D.I. 1) However, she continued
with her filings in State court. Shahin filed a motion for
reargument on her request to join an additional party, which
was denied by the State Court on July 11, 2017. (D.I. 13-8 at
1) She filed a motion for relief from judgment on July 31,
2017, which was denied by the Court of Common Pleas on
November 30, 2017. (Id. at 2-4) At that point, the
Court of Common Pleas advised Shahin that it would not
consider further motions made by her in the action and
advised the only avenue left was an appeal to the Superior
Court. (Id. at 4) Shahin filed a notice of appeal to
the Superior Court of the State of Delaware in and for Kent
County. See Shahin v. Boney, CA. No. K17A-12-004
NEP. The Court takes judicial notice that the appeal is
pending and a briefing schedule was entered on January 18,
27, 2017, counsel for Boney advised the Court that, "it
seems that an improperly filed letter by an aggrieved
Plaintiff in a state court action was accepted as a
"Notice of Removal" to this court." (D.I. 9)
The Court construes the letter as a motion to remand. Shahin
responded by filing a motion for leave of Court to file
amendments to her original complaint by adding a second
defendant, City of Dover. (D.I. 11) Next, Shahin filed a
motion for sanctions against defense counsel. (D.I. 12) On
December 12, 2017, Boney filed a motion to dismiss. (D.I. 13)
Shahin responded to the motion on February 12, to which Boney
replied on March 9. (D.I. 17, 19) On February 12, Shahin also
filed an amended notice of transfer. (D.I. 15, 16)
exercise of removal jurisdiction is governed by 28 U.S.C.
§ 1441 (a), which states that, "[e]xcept as
otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts
of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district
court of the United States for the district and division
embracing the place where such action is pending." In
order to remove a civil action from state court to federal
court, a district court must have original jurisdiction by
either a federal question or diversity of citizenship.
See 28 U.S.C. §§ 1331, 1332, 1441(a).
Sections 1441(a) and 1443 both provide that the action may be
removed by the defendant to the district court of the United
States. See Id. at §§ 1441(a), 1446. The
removal statutes are strictly construed, and require remand
to State court if any doubt exists over whether removal was
proper. See Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 104 (1941).
will remand a removed case "if at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction." 28 U.S.C. § 1447(c). The
party seeking removal bears the burden to establish federal
jurisdiction. See Steel Valley Auth. v. Union Switch
<& Signal Dip. Am. Standard, Inc., 809 F.2d 1006,
1010 (3d Cir. 1987); Zoren v. Genesis Energy, L.P.,
195 F.Supp.2d 598, 602 (D. Del. 2002). In determining whether
remand based on improper removal is appropriate, the court
"must focus on the plaintiffs complaint at the time the
petition for removal was filed, " and assume all factual
allegations therein are true. Steel Valley Auth.,
809 F.2d at 1010. Upon a determination that a federal court
lacks subject matter jurisdiction, the District Court is
obligated to remand, sua sponte, to the State court
from which it was removed. See Scott v. New York Admin,
for Children's Services, 678 Fed.Appx. 56 (3d Cir.
Feb. 28, 2017).
removal fails for a number of reasons. First, the removal
statutes are construed narrowly, and doubts about removal are
resolved in favor of remand. Second, removal by a plaintiff
is not contemplated by 28 U.S.C. § 1446(a). By its plain
language, the removal statute limits the rights of removal to
the "defendant" or "defendants."
Gross v. Deberardinis,722 F.Supp.2d 532, 534 (D.
Del. 2010). Third, Shahin filed her petition for transfer,
construed as a notice of removal, well beyond the 30 days
allowed by § 1446(b). Fourth, the Court of
Common Pleas construed Shahin's Complaint (see
D.I. 19-1) as raising a civil tort action, rinding no claim
of a violation of federal law pursuant to 42 U.S.C. §
1983, and gave no weight to Shahin's argument in that
regard. (D.I. 9-1 at 2, 3 n.l) There is also not complete
diversity among the parties and, therefore, jurisdiction does
not lie under 28 U.S.C. § 1332. Fifth, to the extent
Shahin contends jurisdiction lies by reason of a federal
question (although her position has been rejected), the
removal statute provides that "all defendants" who
have been properly joined and served must join in or consent
to the removal of the action. See e.g., Auld v.
Auld,553 Fed.Appx. 807 (10th Cir. Jan. 29,
2014) (removal defective when removing party clearly
"lacked an objectively reasonable basis for seeking
removal"); Anderson v. Toomy, L.P., 2008 WL
4838139, at *3 (D. Utah Nov. 4, 2008) (only defendant may
remove to federal court). It is unclear if both defendants
even appeared in the Court of Common Pleas. ...