Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burger v. Colorado National Bancorp

United States District Court, D. Colorado

October 16, 2017

CHARLES BURGER, JEFFREY DESICH, RICHARD DESICH, FBO BRIAN DEVLIN IRA, FBO JULIE DEVLIN IRA, JHM ENTERPRISES, LLC, JOHN NELLIGAN, CURT THOMPSON, EUGENE WEIL, and ROBERT EKBACK, Plaintiffs,
v.
COLORADO NATIONAL BANCORP, Defendant.

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs initiated this action in the District Court for the County of Denver, Colorado on June 23, 2016 alleging generally that Defendant was liable to Plaintiffs for all sums due and owing to them under promissory notes that matured on December 31, 2015. Compl., ECF No. 5. Defendant removed the action to this Court on August 15, 2017 asserting the Court's federal question jurisdiction. ECF No. 1. The Court finds that Defendant fails to demonstrate substantial question jurisdiction and the Plaintiffs' motion does not, itself, create a right to remove under § 1446(b) and, thus, the Court will grant the Plaintiffs' motion to remand.

         I. Background

         In the underlying case, the state court entered summary judgment in favor of the Plaintiffs on January 11, 2017, in the aggregate amount of $4, 012, 756.36, plus interest in the aggregate amount of $210, 534.02 for a total judgment amount of $4, 223, 290.38. Plaintiffs commenced enforcement actions on February 11, 2017 by seeking discovery from Defendant. On May 27, 2017, the state court granted Plaintiffs' unopposed motion to hold the enforcement actions in abeyance to give the parties time to negotiate a settlement. After negotiations failed, Plaintiffs filed a Motion to Vacate Order Holding Enforcement Actions in Abeyance and Issue Writs of Garnishment and Execution (“Motion to Vacate”) on July 27, 2017 seeking immediate garnishment and execution on Defendant's shares. There is no indication that the state court ruled on the motion.

         Defendant removed the state case to this Court asserting federal question jurisdiction pursuant to 28 U.S.C. § 1331 “because issues raised in the Motion to Vacate now involve federal banking regulations making the matter one that constitutes a civil action founded on a claim or right under the laws of the United States.” Notice of Removal ¶ 8.

         Plaintiffs object to the removal arguing that Defendant's defense to their attempt to collect on a judgment they received in the state court case cannot form the basis for federal court jurisdiction. Moreover, Plaintiffs assert that the removal was untimely or, alternatively, Defendant waived its right to removal by participating in the state court action.

         Defendant counters that the removal statute provides for removal at later stages of the case based on documents that need not be pleadings. As such, Defendant contends that Plaintiffs' Motion to Vacate, which was filed in state court after the judgment and sought immediate issuance of writs of garnishment and writs of execution, constitutes notice of Plaintiffs' attempt to assume control of the bank, which, itself, is governed by federal law. Defendant asserts that the right to removal arose only with the filing of the Motion to Vacate and, thus, Defendant could not have waived its right.

         Plaintiffs reply that their post-judgment enforcement motion in no way alters or amends the Complaint, and Defendant's cases supporting the “other paper” doctrine apply only to questions of diversity jurisdiction, which are not present here.

         II. Analysis

         To be removable, a civil action must satisfy the requirements for federal jurisdiction. 28 U.S.C. § 1441(a). “It is well-established that statutes conferring jurisdiction upon the federal courts, and particularly removal statutes, are to be narrowly construed in light of [the courts'] constitutional role as limited tribunals.” Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1095 (10th Cir. 2005). The presumption is therefore “against removal jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995), abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v. Owens, - U.S. -, 135 S.Ct. 547, 554 (2014) (“a defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.”). Where there exist uncertainties regarding the Court's jurisdiction, the uncertainties are resolved in favor of remand. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001), abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v. Owens, - U.S. -, 135 S.Ct. 547, 554 (2014) (same). “The party invoking federal jurisdiction has the burden to establish that it is proper, and there is a presumption against its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (internal quotation marks omitted).

         In this case, Defendant contends that “issues raised in the Motion to Vacate involve federal banking regulations and that the seizure of the bank stock will constitute an exercise of control over the Bank, which is allegedly improper pursuant to the federal Bank Holding Company Act.” Mot. ¶ 15; see also Notice of Removal ¶ 8 (“issues raised in the Motion to Vacate now involve federal banking regulations making the matter one that constitutes a civil action founded on a claim or right under the laws of the United States.”). Thus, Defendant asserts the Court's federal question jurisdiction based solely on the Plaintiffs' motion.

         Typically, to be removable based on federal question jurisdiction, a pleading must present a federal question “on the face of the plaintiff's properly pleaded complaint, ” which is otherwise known as the “well-pleaded complaint rule.” See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The parties agree that no federal question arises under the operative pleading in this breach of contract action. But here, Defendant invokes “substantial question” jurisdiction that may originate in a “‘special and small category' of cases in which arising under jurisdiction still lies.” Becker v. Ute Indian Tribe of the Uintah & Ouray Reservation, 770 F.3d 944, 947 (10th Cir. 2014) (quoting Gunn v. Minton, 568 U.S. 251, 257 (2013)).

         The Court is not convinced. While the Defendant takes pains to explain specifically how the Plaintiffs' attempts to enforce their judgment might result in the Plaintiffs' control of the Defendant bank, it cites no case law supporting its proposition that the Motion to Vacate presents a substantial federal question sufficient to fall under the “exceedingly narrow-[ ] special and small category of cases.” Gilmore v. Weatherford, 694 F.3d 1160, 1171 (10th Cir. 2012).

         Moreover, “[t]o invoke this so-called ‘substantial question' branch of federal question jurisdiction, a plaintiff must show that ‘a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.'” Becker, 770 F.3d at 947 (quoting Gunn, 568 U.S. at 257) (emphasis added). It appears that the Tenth Circuit has not (yet) recognized the successful assertion of substantial question jurisdiction on removal. See Gilmore, 694 F.3d at 1173 (“To determine whether an issue is ‘necessarily' raised, the Supreme Court has focused on whether the issue is an ‘essential element' of a plaintiff's claim.” (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 315 (2005)); see also Dutcher v. Matheson, 733 F.3d 980, 987 n.6 (10th Cir. 2013). Here, Defendant's stated substantial question-“the federal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.