121107 toomey motion for remand

7/30/2019 121107 Toomey Motion for Remand

1/16

MOTION TO REMAND AND MEMORANDUM OF LAW IN SUPPORT 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DEBORAH L. TOOMEY, BARBARASALASIN, RON FENN, BETHANNFENN, GERALD TRUMBULL,REBECCA OTERO, YARROWDANKERT, FELICITAS RODRIGUEZ,DEBRA GEORGE, JAMES C. MALLEN,PATRICK FINLEY, LINDA SCOTT,PATRICIA SISTRUNK, JOAN

CONWAY, JOHN PAPE, ALISONRASHEDI, ROBERT HANSECK,WILLIAM CHARLES BENNETT JR.,GORDON MISHLER, MONICAMISHLER, AUGUSTA MISHLER,JOSEPH MISHLER, GLENN M. ALLEN,JOHN E. RAYBURN, LYNN LARA,BENJAMIN A. SANCHEZ, BONNIE SUESANCHEZ, MARYANN WALTER,

THOMAS P. BARTO, GRETCHEN M.BARTO, ARTHUR LEVINE, RAMONALEVINE, ROBERT R. MUNNERLYN,DIANNE FOX, EARL FOX, LOUIEPALACIOS, JAMES PALACIOS,MICHELLE CAMBROTO, PHYLLISMADISON, DAVID MADISON,WILLIAM MATA, AMANDA BAILEY,MILDRED I. REED, MICHAEL W REED,CHERYL HOLLINGSWORTH, DON

CHILDERS, SHIRLEY M. CHILDERS,BETTY DURHAM, MARY ROSE,CAROL NARANJO, LUCYFARRESTER, JOHN B. GILLEM, EDNACOBLE, BRUCE THOMPSON,KENNETH HUGHES SMILEY, ANN B.SMILEY, MICHAL SCHARTZ, MARIA

No. 2:12-CV-01100-SMV-LAM

Magistrate Stephan M. Vidmar


2/16


BACA, ALFREDO BACA, JOSEPHJARAMALLO, MARCUS JARAMALLO,

MICHELLE ELLINGER, DANAVILLINES, DARONDA FOX, KATHEBACHTEL

Plaintiffs,

vs.

CITY OF TRUTH OR CONSEQUENCES,a municipal corporation,

Defendant.

MOTION TO REMAND AND

MEMORANDUM OF LAW IN SUPPORT

Plaintiff DEBORAH TOOMEY, self-represented, hereby files this Motion

to Remand pursuant to 28 U.S.C. 1447 and as grounds states:

1. 65 self-represented plaintiffs commenced this action on October 15,2012, in the District Court of the Seventh Judicial District in and for Sierra County,

State of New Mexico, alleging recycling and solid waste collection violate a recent

State of New Mexico administrative decision that the land remains encumbered for

recreational use only; alleging Defendant violated its local zoning ordinances and

such failure was a violation of due process in zoning decisions; and ultra vires acts


3/16


in failing to enact an ordinance to acquire solid waste collection and recycling

facilities as required by state statute.

2. Defendant City of Truth or Consequences filed its Notice of Removalon October 24, 2012, claiming Plaintiffs assert claims under the Recreation and

Public Purposes Act of 1926, as amended by the Recreation and Public Purposes

Amendment Act of 1988, 43 U.S.C. 869 to 869-4. Notice of Removal, 3.

3. Defendant further asserts Plaintiffs request judicial relief under theRecreation and Public Purposes Act in Claim 1 of the Complaint by requesting the

land revert to the United States. Response to Motion for Preliminary Injunction,

pp. 11-12.

4. Defendant fails to direct with specificity in the Notice of Removalwherein Plaintiffs request in their Complaint for Declaratory Relief judicial review

or relief under the Recreation and Public Purposes Acts or to Plaintiffs requesting

land revert to the United States. Defendant fails to direct with specificity

because Plaintiffs do not request in their Complaint for Declaratory Relief judicial

review of Recreation and Public Purposes Acts nor request relief of land

rever[sion] to the United States.

5. Plaintiffs do not absurdly request judicial review of a State of NewMexico final administrative decision which Plaintiffs find favorable: the land


4/16


remains encumbered by the patent for recreational use only. The mere presence

of a federal issue in a state cause of action does not automatically confer federal-

question jurisdiction.Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813

(1986). Plaintiffs request the State of New Mexico declare recycling, solid

waste collection, and zoning as industrialand ripe for development as

inconsistent with a State of New Mexico final decision that the land remains

encumbered for recreational use only. There is nothing in the Complaint which

can be read as a request by Plaintiffs for the land to revert to the United States nor

a request to re-adjudicate a decision favorable to Plaintiffs case.

6. Defendant further claimed as cause for removal that Plaintiffs did notlimit the claim to the New Mexico Constitution or the laws of New Mexico in

Count III. As evidence of such failure to limit, Defendant quotes less than one-

third of the sentence: Defendant violates the constitutionally and statutorily

protected right of due process. A full reading of Count III is clear that relief is

requested under state of New Mexico statutes and constitution.

7. A removing defendant has the burden of proving the existence offederal jurisdiction. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th

Cir. 1996). Removability should be determined according to the plaintiffs

pleading at the time of the petition for removal. Coker v. Amoco Oil Co., 709


5/16


F.2d 1433, 1440 (11th Cir. 1983). It is well settled that the question of subject

matter jurisdiction is a snapshot of the complaint at the time of removal. Chadwich

v. Shell Oil Co., 828 F.Supp. 26, 27 (E.E. La. 1993).

8. Generally a district court applies the "well-pleaded complaint" rule todetermine if it has subject matter jurisdiction over a case removed from state court.

SeeLouisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 153, 29 S.Ct. 42, 43

(1908).

9. An order remanding the case may require payment of just costs andactual expenses, including attorney fees, incurred as a result of the removal. 28

U.S.C. 1447(c). Also see,Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238

(6th Cir. 1983) (removal followed by remand warrants an award of attorneys

fees); Gray v. New York Life Ins. Co., 906 F.Supp. 628 (N.D. Ala.) (good faith is

no defense to a 28 U.S.C. 1447(c) fee claim).

10. Defendant should not be rewarded for fraud against this Court infiling a Notice of Removal for subject matter jurisdiction, without cause, to delay

the granting of Preliminary Injunction or as a ploy for a back-door appeal to which

Defendant has no legal right, simply because Plaintiffs are self-represented and not

entitled to fees.


6/16


WHEREFORE, Plaintiff TOOMEY, respectfully requests this Court to

remand the above-styled action to the Seventh Judicial District of Sierra County,

State of New Mexico, for further proceedings and for reasonable costs associated

with this Motion, including what would be customary for fees to be paid by

Plaintiffs if represented by counsel, payable to a nonprofit corporation in New

Mexico, such as the Foundation for Open Government.

MEMORANDUM OF LAW

Section 1441 of Title 28 provides that 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. 28 U.S.C. 1441(a). In this case, Defendant alleges that removal was

proper because the district court had original jurisdiction to hear Plaintiffs case

under 28 U.S.C. 1331. Section 1331 grants district courts original jurisdiction of

all civil actions arising under the Constitution, laws, or treaties of the United

States. 28 U.S.C. 1331. Thus, the court must decide whether Plaintiffs claims

aris[e] under the Constitution, laws, or treaties of the United States.Id.

Jurisdiction is established based on the allegations of the plaintiffs

complaint filed in state court. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392


7/16


(1987). Federal courts are presumptively without jurisdiction over civil matters,

and the burden of establishing the contrary rests upon the party seeking

jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994). Removal jurisdiction is strictly construed; in doubtful cases, the action

must be remanded. SeeMulcahey, 29 F.3d at 151.

In this case, there is no doubt Plaintiffs plead relief in their Complaintonly

upon City of Truth or Consequences local ordinances, State of New Mexico

statutes, State of New Mexico administrative codes and final decisions, and the

State of New Mexico Constitution, upon which the authority to govern and the

rights of New Mexicans in the State of New Mexico are granted and ordained.

A. There is no federal question raised in Plaintiffs Complaint in regards tothe Recreation and Public Purposes Act of 1926, as amended by theRecreation and Public Purposes Amendment Act of 1988, 43 U.S.C.

869 to 869-4.

Defendant incorrectly asserts in the Notice of Removal that Plaintiffs request

a judicial determination under the Recreation and Public Purposes Act of 1926, as

amended by the Recreation and Public Purposes Amendment Act of 1988; not

surprisingly, Defendant fails to point with specificity to the Complaint where

Plaintiffs make such a claim. Defendant cannot because Plaintiffs do not.

Defendant expands this absurd assertion in their Response to Motion for

Preliminary Injunction, exerting no less than six pages to the question. Here,


8/16


however, Defendant is a little more specific with an even more absurd and false

argument that Plaintiffs cannot prevail on a claim that the land must revert to the

United States." (Response to Motion, pp. 11-12.) Plaintiffs make no such claim

nor request rever[sion] to the United States in either the Complaint or in

Toomeys Motion for Preliminary Injunction. Defendants federal-based defense

does not create a federal jurisdiction upon nonexistent claims for relief on a theory

that plaintiffs do not make in their complaint. A defendant may not remove based

on their federal defense. Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475

(1998). Jurisdiction may not be sustained on a theory that plaintiffs have not

advanced. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 809, n. 6 (1986).

Generally, the presence of federal question jurisdiction is determined by the

well-pleaded complaint rule. Gully v. First Natl Bank, 299 U.S. 109, 112-13

(1936);Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908). In other

words, federal question jurisdiction exists only when a federal question is

presented on the face of the plaintiffs properly-pleaded complaint. Caterpillar,

Inc., 482 U.S. at 392; King v. Marriott Intl, Inc., 337 F.3d 421, No. 02-2139, slip

op. at 5 (4th Cir. 2003).

Defendants absurd assertion, without specificity, that Plaintiffs request a

claim under the Recreation and Public Purposes Act and to revert the land back to


9/16


the United States is unsustainable as no such claims are made in Plaintiffs

Complaint.

Simply, Plaintiffs do not request judicial determination as to whether or not

the land remains reserved for permanent recreational site and municipal golf

course under the Recreation and Public Purposes Acts nor make a claim to revert

[the land] to the United States. There is no need to request a judicial

determination as to whether the subject land remains encumbered for recreational

use only, as the State of New Mexico made that final determination on September

7, 2012, through the administrative appeal process (Complaint, 12-23; Motion

for Preliminary Injunction, Exhibits A-D). And no one, including Plaintiffs, has

made a claim to the United States to request they revert the land; and, Plaintiffs

dont do so now.

Thus, pursuant to the well-pleaded complaint rule, the plaintiffs are the

master of their claim, and they may avoid federal jurisdiction by exclusive reliance

on state law. King v. Marriott Intl, Inc., 337 F.3d 421, No. 02-2139, slip op. at 5

(4th Cir. 2003) (internal citations omitted); see also The Fair v. Kohler Die &

Specialty Co., 228 U.S. 22, 25 (1913) (Of course, the party who brings a suit is

master to decide what law he will rely upon.) (Holmes, J.). Plaintiffs do not assert

a theory for relief under the Recreation and Public Purposes Act; instead, Plaintiffs


10/16


allege a theory in Claim 1 of Defendants violation of a State of New Mexico final

administrative decision that the land remains encumbered for recreational use only.

Plaintiffs never request the Court to adjudicate whether the land is for

recreational use only as it has already been determined by the State of New Mexico

to be so encumbered. [I]n order for a complaint to state a claim arising under

federal law, it must be clear from the face of the plaintiffs well-pleaded complaint

that there is a federal question.Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.

1996). Plaintiffs simply request the court to declare that solid waste collection

and recycling are not recreational (Complaint, 24-25) and by utilizing the

patented land for purposes other than recreational and by zoning the patented land

as M-1 and T-1 Defendant is in violation ofa recent and existing State of New

Mexico administrative decision that the land remains encumbered for recreational

use only. Complaint, 24-25 and 78.

Simply, Defendant attempts a federal back-door appeal to a State of New

Mexico final administrative decision, on Plaintiffs dime and time, by falsely

asserting Plaintiffs wish to adjudicate a State of New Mexico final decision

Plaintiffs already find favorable, and do so by making the rash accusation Plaintiffs

request the Court remove recreational land from our community by demanding the

United States revert the land.


11/16


Defendant can cry all they want in their Response to Motion for Preliminary

Injunction that Plaintiffs have no cause of action under the [Recreation and Public

Purposes] Act since Plaintiffs claim no cause of action under the Act. Response

to Motion, p.

Defendants assertions that Plaintiffs make a claim in their Complaint under

the Recreational and Public Purposes Act and request relief under Claim 1 that the

land must revert to the United States in order to claim federal jurisdiction is not

only absurd but fraudulent.

B. There is no federal question raised in Plaintiffs Count III of theComplaint.

Accordingly, under the well-pleaded complaint rule, courts ordinarily . . .

look no further than the plaintiffs complaint in determining whether a lawsuit

raises issues of federal law capable of creating federal-question jurisdiction under

28 U.S.C. 1331. Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir. 1996).

Moreover, [w]hen evaluating the propriety of removal, the district court must

determine the nature of plaintiffs claims from the face of the complaint at the time

the petition for removal was filed.Martin v. Lagualt, 315 F. Supp. 2d 811, 814

(E.D. Va. 2004) (citation omitted).

Defendant asserts by quoting less than a third of a sentence in its Notice of

Removal that removal for federal jurisdiction is appropriatebecause Plaintiffs do


12/16


not limit the claim [3] to the New Mexico Constitution or the laws of New

Mexico. (Notice of Removal, 3.) The full text of Claim 3 refers to special use

permitting due process violations. As the special use ordinance previously

quoted in full is a Truth or Consequences ordinance, and not a federal statute, this

cause for removal is simply ridiculous.

Of the more than approximately 25 references to statutes and laws in the

Complaint for Declaratory Relief, every one specifically cites a State of New

Mexico statute or City of Truth or Consequences local ordinance, including

references to violation of due process, a New Mexico constitutionally and

statutorily protected right, the subject matter of Claim 3.

If Defendants theory were to be accepteda failure to specifically

limitthen Plaintiffs also failed to limit the claim to the United States of America,

and failed to limit every other set of laws in the world, too, except for the State of

New Mexico and the City of Truth or Consequences, New Mexico, as the only

laws specifically not limited.

The burden of demonstrating jurisdiction resides with the party seeking

removal.Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (citing

Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)).

The court is obliged to construe removal jurisdiction strictly because of the


13/16


significant federalism concerns implicated.Id. Therefore, [i]f federal

jurisdiction is doubtful, a remand [to state court] is necessary.Id.

65 Plaintiffs as the master of their claims made allegations and requested

relief solely upon the statutes of New Mexico, local ordinances of Truth or

Consequences, administrative rules and decisions of the State of New Mexico, and

the New Mexico Constitution upon which the authority and responsibility to

govern is granted and ordained.

65 Plaintiffs petitioned the judicial branch of government, State of New

Mexico, County of Sierra, 7thJudicial District, specifically tasked as a check and

balance to the abuse of a local government, Defendant City of Truth or

Consequences, that is located less than 15 minutes from their homes and places of

employment. Many, if not most, of the 65 Plaintiffs will find it unnecessarily

burdensome and impossible to travel the 300 miles roundtrip to pursue in federal

court their claims for relief under State of New Mexico statutes and local

ordinances as guaranteed by the State of New Mexico Constitution. Plaintiffs did

not assert claims under federal statutes as their own state statutes and local

ordinances are sufficient and necessary for the requested relief.

Defendants assertion that Plaintiffs do not limit Claim 3 to New Mexico,

thereby, creating a federal jurisdictional claim, is not only absurd but fraudulent.


14/16


C. Sanctions for Defendants fraud upon the Court is warranted.The question remains: did Defendant file a fraudulent Notice of Removal

simply as an attempt for a back-door appeal of a State of New Mexico final

administrative decision that the land remains encumbered for recreational use only

or was it also to evade and delay justice?

As a small community, Defendant is aware that many of the 65 plaintiffs are

constrained by physical mobility issues or employment concerns, limiting their

abilities to travel 300 miles to pursue their claims for relief originally filed within

10 miles of their homes and places of employment. Did Defendant depend upon

this limitation in order to silence many of the 65 plaintiffs by fraudulently

removing the case to federal court?

Did Defendant file a fraudulent Notice of Removal to delay the Hearing on

the Preliminary Injunction set for the week following? If so, Defendant was

victorious as 65 Plaintiffs were denied a hearing on the Preliminary Injunction set

for November 2, 2012.

Did Defendant desire a hearing on the Preliminary Injunction to be heard in

a location wherein most of the 65 plaintiffs could not attend to pursue their

requests for relief rather than in a location wherein all 65 plaintiffs could and

would attend?


15/16


Did Defendant file a Notice of Removal, knowing there were no federal

claims made by Plaintiffs, without fear of sanctions as the warranted sanctions for

an order of Remand is the payment of attorneys fees and costs, inapplicable with

self-represented plaintiffs?

Plaintiffs pray this Court does not reward Defendants fraud upon the court

by failing to utilize its inherent power and intent of mandated sanctions in an Order

to Remand:

Federal courts have the inherent power to manage their ownproceedings and to control the conduct of those who appear beforethem. In invoking the inherent power to punish conduct whichabuses the judicial process, a court must exercise discretion infashioning an appropriate sanction, which may range fromdismissal of a lawsuit to an assessment of attorney's fees. Althoughthe "American Rule" prohibits the shifting of attorney's fees in

most cases, seeAlyeska Pipeline Service Co. v. Wilderness Society,421 U.S. 240, 259 , an exception allows federal courts toexercise their inherent power to assess such fees as a sanction

when a party has acted in bad faith, vexatiously, wantonly, orfor oppressive reasons, id., at 258-259, 260, as when the partypractices a fraud upon the court, Universal Oil Products Co. v.Root Refining Co., 328 U.S. 575, 580 , or delays or disrupts thelitigation or hampers a court order's enforcement,Hutto v. Finney,437 U.S. 678, 689 , n. 14. Pp. 43-46.

Chambers v. Nasco, Inc., 501 U.S. 32 (1991) (emphasis added).

Also understanding that self-represented plaintiffs have no attorneys fees,

and cannot profit from the rewarding of sanctions against an opposing party,

Plaintiffs request the Court sanction Defendant a customary figure (i.e., $1,000)


16/16


payable to a local nonprofit organization dedicated to open governance, New

Mexico Foundation for Open Government.

D. ConclusionDefendant has failed to prove there is any federal subject matter jurisdiction

in the Complaint, including the absurd and fraudulent assertions Plaintiffs request

reversion of the land or failure to limit is indicative of a federal question. Federal

jurisdiction either exists at the time of removal or it does not. A defendant may

not remove based on their federal defenses. It is the defendants burden to prove

that federal jurisdiction exists within the Complaint. A defendant either meets this

burden or not. Defendant has failed to prove that federal jurisdiction exists. This

case must be remanded.

Respectfully submitted,

DATED: NOVEMBER 7, 2012 ___________//s___________________DEBORAH L. TOOMEY, pro se211 W. Riverside DriveTruth or Consequences NM 87901(505) 315-8503(505) 214-5771 (fax)

121107 toomey motion for remand

Documents