Brown et al v. CDH et al, No. 2:2013cv05126 - Document 12 (E.D. Wash. 2013)
Court Description: ORDER GRANTING PLAINTIFFS' MOTION TO REMAND. Plaintiffs Motion to Remand ECF No. 6 is GRANTED. This case is hereby REMANDED to the Family Court of the Fifth Judicial Circuit for the State of South Carolina for all further proceedings. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Brown et al v. CDH et al Doc. 12 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 TROY ARTIS BROWN and CHERIE MORGAN BROWN, NO: 13-CV-5126-TOR 8 Plaintiffs, 9 ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND v. 10 11 C.D.H., a minor child, and JONATHAN DOUGLAS HAGLER, on behalf of the minor child, 12 Defendants. 13 14 BEFORE THE COURT is Plaintiffs’ Motion to Remand (ECF No. 6). This 15 matter was submitted for consideration without oral argument. The Court has 16 reviewed the briefing and the record and files herein, and is fully informed. 17 BACKGROUND 18 This is an adoption case that was originally filed in the Family Court of the 19 Fifth Judicial Circuit for the State of South Carolina. Defendant Jonathan Hagler 20 (“Hagler”), the biological father of C.D.H., removed the case to this Court pursuant ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 1 Dockets.Justia.com 1 to 28 U.S.C. § 1331, arguing that the case presents federal questions under the 2 Fourteenth Amendment to the U.S. Constitution and the Parental Kidnapping 3 Prevention Act (“PKPA”), 28 U.S.C. § 1738A. Plaintiffs now move to remand the 4 case for lack of federal question jurisdiction. For the reasons discussed below, the 5 Court will grant the motion. 6 DISCUSSION 7 Hagler’s notice of removal alleges that subject matter jurisdiction is proper 8 under 28 U.S.C. § 1331 because “the Petition to involuntarily terminate [his] 9 parental rights filed in South Carolina family court is a civil action that creates 10 federal questions under the Constitution, laws or treaties of the United States.” 11 ECF No. 1 at 11. The crux of Hagler’s argument is that Plaintiffs are depriving 12 him of due process under the Fourteenth Amendment by attempting to terminate 13 his parental rights in a court which lacks personal jurisdiction over him and which 14 lacks authority to modify custody orders previously issued by courts in the State of 15 Washington. ECF No. 1 at 11-12. Plaintiff further suggests that federal question 16 jurisdiction exists under the Parental Kidnapping Prevention Act, which generally 17 requires that state courts give full faith and credit to child custody orders issued by 18 a court in a different state. ECF No. 1 at 12. 19 // 20 // ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 2 1 A. Removal Under 28 U.S.C. 1441 2 Title 28 United States Code, Section 1441(a) provides that an action filed in 3 state court which presents a federal question may be removed “to the district court 4 of the United States for the district and division embracing the place where such 5 action is pending.” 28 U.S.C. § 1441(a) (emphasis added). Removal of this case 6 to the Eastern District of Washington was improper because the underlying action 7 was filed in South Carolina state court. Although this Court has discretion to 8 transfer the case to the District of South Carolina, see Tanzman v. Midwest Exp. 9 Airlines, Inc., 916 F. Supp. 1013, 1017 (S.D. Cal. 1996), it will decline to do so for 10 11 12 want of subject matter jurisdiction. B. Due Process Hagler’s argument that the adoption proceedings initiated in South Carolina 13 violate his right to due process is unavailing. The hallmarks of procedural due 14 process under the Fourteenth Amendment are notice and an opportunity to be 15 heard. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313-314 16 (1950). The record reflects that Hagler has appeared and actively participated in 17 the South Carolina family court proceedings with the assistance of counsel. The 18 record also reflects that the South Carolina family court and the Spokane County 19 Superior Court held a joint hearing at which all parties appeared to determine 20 which court had jurisdiction over the adoption proceeding. ECF No. 7, Ex. C. ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 3 1 Thus, Hagler has been afforded an opportunity to be heard in both state courts on 2 the issues he raises in his notice of removal. Assuming for the sake of argument 3 that due process violations of the type Hagler asserts could give rise to federal 4 question jurisdiction, there is simply no basis for doing so on this record. 5 To the extent that Plaintiff believes that the South Carolina family court 6 lacks personal jurisdiction over him, he is free to litigate that issue in the South 7 Carolina state courts. This Court will not express an opinion on whether personal 8 jurisdiction over Plaintiff is proper in South Carolina family court. 9 C. Parental Kidnapping Prevention Act 10 There is no private right of action to enforce the PKPA in federal court. 11 Thompson v. Thompson, 484 U.S. 174, 187 (1988) (“[T]he context, language, and 12 history of the PKPA together make out a conclusive case against inferring a cause 13 of action in federal court to determine which of two conflicting state custody 14 decrees is valid.”). The PKPA therefore does not give rise to federal question 15 jurisdiction over this case. La Maina v. Brannon, 804 F. Supp. 607, 612 (D. N.J. 16 1992). Given that there is no basis for exercising federal question jurisdiction, this 17 case must be remanded to the Family Court of the Fifth Judicial Circuit for the 18 State of South Carolina. 19 // 20 // ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 4 1 D. Award of Attorney’s Fees and Costs 2 Plaintiffs have requested an award of attorney’s fees and costs pursuant to 3 28 U.S.C. § 1447(c). Section 1447(c) provides, in relevant part, that “[a]n order 4 remanding [a] case may require payment of just costs and any actual expenses, 5 including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). 6 “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) 7 only where the removing party lacked an objectively reasonable basis for seeking 8 removal. Conversely, where an objectively reasonable basis exists, fees should be 9 denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). The Court 10 finds that Hagler, as a pro se litigant, had a sufficiently reasonable basis for 11 attempting to remove this case under the PKPA. Although Thompson forecloses 12 such removal, a reasonable pro se litigant in Plaintiff’s position could be excused 13 for failing to locate this authority in view of the facial applicability of the statute to 14 the facts alleged in the notice of removal. Accordingly, Plaintiffs’ request for 15 attorney’s fees and costs is denied. 16 IT IS HEREBY ORDERED: 17 Plaintiffs’ Motion to Remand (ECF No. 6) is GRANTED. This case is 18 hereby REMANDED to the Family Court of the Fifth Judicial Circuit for the State 19 of South Carolina for all further proceedings. 20 ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 5 1 The District Court Executive is hereby directed to enter this Order, furnish 2 copies to counsel and Defendant Jonathan Hagler at his address of record, mail a 3 certified copy to the Family Court of the Fifth Judicial Circuit for the State of 4 South Carolina, and CLOSE the file. 5 DATED December 27, 2013. 6 7 THOMAS O. RICE United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 6
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