In re Whatley

396 F.Supp.2d 50

In re Perry Lee WHATLEY Southwest Boston Senior Services, Inc., a/k/a Ethos, Plaintiff, v. Perry Lee Whatley and Dawn Johnson Whatley, Defendants.

No. CIV.A.05-11881 PBS.

United States District Court, D. Massachusetts.

October 25, 2005.

COPYRIGHT MATERIAL OMITTED

James M. O'Sullivan, O'Sullivan & Associates, P.C., Norwell, for Southwest Boston Senior Services, Inc., Plaintiff.

Daniel J. Shea, Daniel J. Shea, P.C., St. Houston, TX, for Dawn Johnson Whatley, Perry Lee Whatley, Defendants.

Ken W. Shulman, Law Office of Ken, Shulman, Boston, for Perry Lee Whatley, Defendant.

MEMORANDUM AND ORDER

SARIS, District Judge.

Plaintiff ETHOS filed a petition for an order authorizing protective services for octogenarian Perry Lee Whatley on the ground of alleged elder abuse in the Massachusetts Probate & Family Court. Defendants removed and asserted a counterclaim pursuant to 42 U.S.C. § 1983. After hearing and a review of the briefs, I remand the action for lack of subject matter jurisdiction.

I. PROCEDURAL BACKGROUND

On April 15, 2005, Robert Daniel Whatley and Jeanie Anderson initiated a guardianship proceeding on behalf of their uncle Perry Lee Whatley ("Mr.Whatley") in Texas Probate Court ("Texas Proceeding"). The Texas Proceeding was removed by Mr. Whatley, but the U.S. District Court for the Southern District of Texas remanded to the Texas Probate Court on the grounds that "Whatley improperly removed this case — meretriciously claiming defensive civil-rights violations." (Ray J. Black, Jr. Aff. Ex. P ¶ 2.) After twice attempting and failing to have the presiding probate judge recused, Mr. Whatley and his wife, Dawn Johnson Whatley, traveled to Massachusetts.

On September 14, 2005, plaintiff ETHOS filed an emergency petition for an order authorizing protective services in Massachusetts Probate & Family Court ("Massachusetts Proceeding"). The petition represents, pursuant to Mass. Gen. Laws ch. 19A, § 14 et seq., that ETHOS "is a designated protective services agency" and that "Perry Lee Whatley is suffering from abuse, neglect, and financial exploitation." (Def.'s Notice of Removal Ex. A.) Specifically, the petition states that ETHOS has "reasonable cause to believe that":

(i) [Mr. Whatley] is the subject of guardianship and protective proceedings in Texas;

(ii) nonetheless, his wife [Dawn Johnson Whatley] has surreptitiously whisked him off to Massachusetts to avoid the jurisdiction of the Texas courts;

(iii) the doctors at the Beth Israel Hospital report that he is unable to manage himself or his affairs; and

(iv) he has assets of approximately $2.5 million.

(Id.) The petition asks for, inter alia, "the appointment of someone authorized to consent to protective services" and "an order ... enjoining Dawn Whatley from interfering with the provision of protective services." On September 16, 2005, defendants Perry Lee Whatley and Dawn Johnson Whatley removed the Massachusetts Proceeding to this Court. The same day, defendants filed their answer to plaintiff's petition in this Court, asserting a 42 U.S.C. § 1983 counterclaim and claiming proper subject matter jurisdiction based on the existence of a federal question, diversity of citizenship, and a civil rights action.

In removing the Massachusetts Proceeding, defendants stated that they "have not and do not ask this [C]ourt to assume general probate jurisdiction or assert control of their property." (Def.'s Resp. to Mot. to Remand ¶ 8.) On September 29, 2005, however, defendants filed an Amended Notice of Removal with respect to the Texas Proceeding. This Court remanded the Texas Proceeding back to the Texas Probate Court on October 6, 2005. After remand, the Texas Probate Court reaffirmed its appointment of a temporary guardian.

On October 12, 2005, defendants amended their section 1983 counterclaim, asserting a conspiracy to violate section 1983. In addition to plaintiff ETHOS, defendants allege that the conspiracy includes Texas Probate Judge Mike Wood, Massachusetts Probate & Family Justice E. Chouteau Merrill, Valerie Millholland, Jeanie Anderson, Robert Daniel Whatley, Roy Fuller, and Ray Black, Jr. (Defs.' First Am. Countercl. 2-4.)

On October 21, 2005, plaintiff moved to amend its petition in the Massachusetts Proceeding. The amended petition makes similar allegations, adds that the Texas Probate Court appointed a temporary guardian with the authority to consent to protective services for Mr. Whatley in the Texas Proceeding, and asks for orders "enjoining Dawn Whatley from interfering with the provision of protective services" and requiring Dawn Johnson Whatley to account and itemize for Mr. Whatley's assets. (Pl.'s Mot. for Leave to Amend Pet.; Pl.'s First Amended Pet. ¶ 4.)

Mr. Whatley and his wife say they are now residents of Massachusetts. He is currently in the Heathwood Nursing and Rehabilitation Center in Chestnut Hill, Massachusetts. Neither side is claiming inadequate medical care or physical abuse. The parties are currently under a protective order issued by this Court, which, among other things, preserves Mr. Whatley's assets and ensures that he remains in Massachusetts pending further court order. There is a dispute over Mr. Whatley's competency.

II. DISCUSSION

Defendants claim subject matter jurisdiction in the Massachusetts Proceeding based on a federal question, diversity of citizenship, and a civil rights action. While plaintiff has consented to subject matter jurisdiction, it "is black-letter law that a federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction." McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir.2004); Fed.R.Civ.P. 12(h)(3).

A party seeking to remove a case to federal court has the burden of demonstrating the existence of federal jurisdiction. See, e.g., BIW Deceived v. Local S6, 132 F.3d 824, 831 (1st Cir.1997). Furthermore, the removal statute should be strictly construed, and any doubts about the propriety of removal should be resolved against the removal of an action. See, e.g., Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir.1999).

A. Section 1983 Counterclaim

Defendants argue that this Court has jurisdiction based on the section 1983 counterclaim. This argument fails before it begins. Federal removal "jurisdiction is normally ascertained from the face of the state court complaint that triggered the removal" "as it stood at the time the petition for removal was filed." Id.; Ching v. Mitre Corp., 921 F.2d 11, 13 (1st Cir.1990) (citation omitted). In this case, defendants did not assert the section 1983 counterclaim in state court. Rather, defendants filed their answer, asserting the counterclaim, in this Court after removing the Massachusetts Proceeding. Therefore, at the time of removal, no section 1983 counterclaim existed to justify this Court's jurisdiction.

Moreover, even if defendants had asserted the section 1983 counterclaim in the Massachusetts Probate & Family Court before removal, they would still fail under either section 1441 or section 1443.

To establish removal jurisdiction based on a federal question under 28 U.S.C. § 1441(a),¹ federal subject matter jurisdiction must be established within the four corners of the plaintiff's complaint. See Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. 1, 9-11, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ("[A] defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case `arises under' federal law." (footnote omitted)). As such, section 1441(a) "authorizes removal only by defendants and only on the basis of claims brought against them and not on the basis of counterclaims asserted by them." Ballard's Serv. Ctr., Inc. v. Transue, 865 F.2d 447, 449 (1st Cir.1989); see also 14B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3722 (3d ed. 1998) ("The federal claim or right that provides the predicate for removal to federal court must not ... enter the case as a counterclaim asserted by the defendant." (footnote omitted)); 14C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3731 ("[T]he right of removal is further limited by the basic principle that defendants may remove only on the basis of claims brought against them and not on the basis of counterclaims, cross-claims, or defenses asserted by them." (footnote omitted)). Plaintiff's petition for protective services under Mass. Gen. Laws ch. 19A, §§ 19, 20 filed in Massachusetts Probate & Family Court presents no federal question. In addition, the section 1983 counterclaim against plaintiff provides no basis for federal question jurisdiction because it is a counterclaim asserted by defendants, not a claim brought against defendants.

Defendants mention in passing removal jurisdiction based on a civil rights action under 28 U.S.C. § 1443. To remove under section 1443(1), defendants must assert a "law providing for equal civil rights," which does not include laws such as 42 U.S.C. § 1983 "that confer equal rights in the sense, vital to our way of life, of bestowing them upon all." 28 U.S.C. § 1443(1); Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); see also Lovely v. Laliberte, 498 F.2d 1261, 1263 (1st Cir.1974). Similarly, section 1443(2) "simply does not apply to laws such as the due process clause and 42 U.S.C. § 1983 that work to guarantee rights available to all persons or citizens." J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 269 n. 2 (7th Cir.1990) (citations omitted). In addition, "the second subsection of § 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights." City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); see also Fosdick v. Dunwoody, 420 F.2d 1140, 1142 (1st...