1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 In re the matter of: No. CV-21-01185-PHX-JAT
10 Betty H Blanda, ORDER
11 Betty Blanda, by and through her attorney in- fact, Leslie Blanda, 12 Plaintiff, 13 v. 14 Thomas J Cisar, et al., 15 16 Defendants.
17 18 This case was removed to this Court from the Maricopa County Probate Court on 19 July 8, 2021. The notice of removal contains several pleading defects in the jurisdictional 20 allegations. See Belleville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691, 21 693 (7th Cir. 2003) (“inquiring whether the court has jurisdiction is a federal judge’s first 22 duty in every case”). 23 First, for the citizenship of Betty Blanda, the notice of removal states that in the 24 petition filed in the probate court, Betty Blanda alleges she is a resident of Arizona. (Doc. 25 1 at 3). The first issue with this allegation is that it is the removing Defendant who must 26 affirmatively allege citizenship; thus, the removing Defendant must, if he can in good faith, 27 allege Betty Blanda’s citizenship. See Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 28 F.3d 1082, 1087 (9th Cir. 2014). The second issue with this allegation is that jurisdiction 1 must be alleged in terms of “citizenship” not “residency”. See Kanter v. Warner-Lambert, 2 265 F.3d 853, 857-858 (9th Cir. 2001). Thus, Betty Blanda’s residence is irrelevant. 3 Accordingly, the removing Defendant has failed to allege citizenship for Betty Blanda. 4 Second, the notice of removal fails to allege the citizenship of Leslie Blanda. Nor 5 does the notice of removal offer any legal basis why the citizenship of Leslie Blanda should 6 be disregarded for purposes of diversity jurisdiction. See generally Johnson v. Columbia 7 Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (holding that a Trust takes on 8 the citizenship of its Trustees). 9 Third, with respect to the Defendants, the notice of removal alleges the “citizenship” 10 of only the corporate Defendant. For each of the four individual Defendants, the notice of 11 removal alleges where such person is a “domiciliary.” (Doc. 1 at 3). The Court is unclear 12 if “domiciliary” is meant to be synonymous with “citizenship” or if the notice of removal 13 is silent on the citizenship of these Defendants. See Kanter, 265 F.3d at 857-858. 14 Fourth, as of the probate court’s order of May 6, 2020, it is clear that Plaintiff and 15 some Defendants herein were already engaged in on-going litigation against each other. 16 (Doc. 1-13 at 13) (the Court sanctioning Defendant Thomas J. Cisar, Esq. for his 17 inadequate discovery responses). However, although the probate court case number 18 indicates that this case has been pending since 2019, this Court does not have the complete 19 record of this case dating back to 2019 because Defendants did not attach it to the notice 20 of removal. In an action premised on diversity, a notice of removal must be filed within 21 one year of when the case is first filed, and any amendments to the complaint after one year 22 that add new parties or claims, generally, do not extend this one-year deadline to remove. 23 See Lopez v. Robinson Aviation (RVA), Inc., No. 10-60241-CIV, 2010 WL 3584446, at *4 24 (S.D. Fla. Apr. 21, 2010) (“…the great weight of the case law overwhelmingly supports 25 this Court’s conclusion that “commencement of the action” under § 1446(b) occurs when 26 the original complaint is filed and that the addition of a new party or claim does not reset 27 the one-year limitation period.”). As indicated above, this “action” appears to have 28 commenced in 2019 and appears to be outside this one-year limitation for removal. 1 Alternatively, the “petition” within the probate case that seems to have started the litigation 2 between these particular parties appears to have been filed in March 2020. Even using this 3 later date, this “action” commenced more than one year prior to removal. 4 Fifth, the Court notes that because the “Amended Petition” is a petition in probate 5 court, it is not styled as a complaint, nor was it given a new case number in state court. 6 Because it was not styled as a complaint, the caption says “In the matter of Betty Blanda”; 7 it does not name particular defendants. Nonetheless, the Amended Petition is clear that it 8 brings a claim against (among other Defendants) Thomas J. Cisar. (Doc. 1-5 at 2). The 9 Amended Petition further alleges “Thomas J. Cisar maintains a home in Maricopa County, 10 Arizona which is reported in the public records as his primary residence. He also actively 11 practices law in Arizona, serves in a fiduciary capacity before the Arizona courts, and 12 serves as a Trustee in various capacities.” (Doc. 1-5 at 3). Yet, the notice of removal 13 states, “[a]t the time Petitioner filed her original Petition in March of 2020, Defendants 14 Thomas Cisar and Margaret Cisar were Illinois domiciliaries.” (Doc. 1 at 3). The notice 15 of removal makes no argument as to why this Court should evaluate the citizenship of these 16 particular Defendants as of March 2020, but seemingly as of 2021 for all other parties. 17 Moreover, the notice of removal (implicitly) argues that the date of the Amended Petition 18 (June 17, 2021) controls removal. The notice of removal fails to address why the date of 19 the original Petition, or the date of the Amended Petition would be the relevant date to look 20 at the citizenship of the parties for purposes of diversity jurisdiction, rather than the date 21 of removal. 22 Sixth, assuming Mr. Cisar was a resident of Arizona at the time of removal, a 23 resident defendant cannot remove to federal court. 28 U.S.C. § 1441(b)(2) (“A civil action 24 otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this 25 title may not be removed if any of the parties in interest properly joined and served as 26 defendants is a citizen of the State in which such action is brought.”). While this Court 27 cannot sua sponte remand based on this, or any other procedural defect in removal, Plaintiff 28 may file a timely motion to remand on this (or any other) basis. See Kelton Arms 1 Condominium Owners, Ass’n, Inc. v. Homestead Insurance Co., 346 F.3d 1190, 1191 (9th 2 Cir. 2003). 3 Seventh, even when diversity jurisdiction is properly alleged before this Court, the 4 probate exception precludes this Court from accepting jurisdiction in certain 5 circumstances. See Goncalves By & Through Goncalves v. Rady Children's Hosp. San 6 Diego, 865 F.3d 1237, 1251–53 (9th Cir. 2017). Specifically, the Ninth Circuit Court of 7 Appeals, post-Marshall, has given the following guidance on the scope of the probate 8 exception: 9 “It is clear after Marshall that unless a federal court is endeavoring to (1) probate or annul a will, (2) administer a decedent’s estate, or (3) 10 assume in rem jurisdiction over property that is in the custody of the probate court, the probate exception does not apply.” Three Keys Ltd. v. SR Util. 11 Holding Co., 540 F.3d 220, 227 (3d Cir. 2008); accord Chevalier v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 In re the matter of: No. CV-21-01185-PHX-JAT
10 Betty H Blanda, ORDER
11 Betty Blanda, by and through her attorney in- fact, Leslie Blanda, 12 Plaintiff, 13 v. 14 Thomas J Cisar, et al., 15 16 Defendants.
17 18 This case was removed to this Court from the Maricopa County Probate Court on 19 July 8, 2021. The notice of removal contains several pleading defects in the jurisdictional 20 allegations. See Belleville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691, 21 693 (7th Cir. 2003) (“inquiring whether the court has jurisdiction is a federal judge’s first 22 duty in every case”). 23 First, for the citizenship of Betty Blanda, the notice of removal states that in the 24 petition filed in the probate court, Betty Blanda alleges she is a resident of Arizona. (Doc. 25 1 at 3). The first issue with this allegation is that it is the removing Defendant who must 26 affirmatively allege citizenship; thus, the removing Defendant must, if he can in good faith, 27 allege Betty Blanda’s citizenship. See Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 28 F.3d 1082, 1087 (9th Cir. 2014). The second issue with this allegation is that jurisdiction 1 must be alleged in terms of “citizenship” not “residency”. See Kanter v. Warner-Lambert, 2 265 F.3d 853, 857-858 (9th Cir. 2001). Thus, Betty Blanda’s residence is irrelevant. 3 Accordingly, the removing Defendant has failed to allege citizenship for Betty Blanda. 4 Second, the notice of removal fails to allege the citizenship of Leslie Blanda. Nor 5 does the notice of removal offer any legal basis why the citizenship of Leslie Blanda should 6 be disregarded for purposes of diversity jurisdiction. See generally Johnson v. Columbia 7 Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (holding that a Trust takes on 8 the citizenship of its Trustees). 9 Third, with respect to the Defendants, the notice of removal alleges the “citizenship” 10 of only the corporate Defendant. For each of the four individual Defendants, the notice of 11 removal alleges where such person is a “domiciliary.” (Doc. 1 at 3). The Court is unclear 12 if “domiciliary” is meant to be synonymous with “citizenship” or if the notice of removal 13 is silent on the citizenship of these Defendants. See Kanter, 265 F.3d at 857-858. 14 Fourth, as of the probate court’s order of May 6, 2020, it is clear that Plaintiff and 15 some Defendants herein were already engaged in on-going litigation against each other. 16 (Doc. 1-13 at 13) (the Court sanctioning Defendant Thomas J. Cisar, Esq. for his 17 inadequate discovery responses). However, although the probate court case number 18 indicates that this case has been pending since 2019, this Court does not have the complete 19 record of this case dating back to 2019 because Defendants did not attach it to the notice 20 of removal. In an action premised on diversity, a notice of removal must be filed within 21 one year of when the case is first filed, and any amendments to the complaint after one year 22 that add new parties or claims, generally, do not extend this one-year deadline to remove. 23 See Lopez v. Robinson Aviation (RVA), Inc., No. 10-60241-CIV, 2010 WL 3584446, at *4 24 (S.D. Fla. Apr. 21, 2010) (“…the great weight of the case law overwhelmingly supports 25 this Court’s conclusion that “commencement of the action” under § 1446(b) occurs when 26 the original complaint is filed and that the addition of a new party or claim does not reset 27 the one-year limitation period.”). As indicated above, this “action” appears to have 28 commenced in 2019 and appears to be outside this one-year limitation for removal. 1 Alternatively, the “petition” within the probate case that seems to have started the litigation 2 between these particular parties appears to have been filed in March 2020. Even using this 3 later date, this “action” commenced more than one year prior to removal. 4 Fifth, the Court notes that because the “Amended Petition” is a petition in probate 5 court, it is not styled as a complaint, nor was it given a new case number in state court. 6 Because it was not styled as a complaint, the caption says “In the matter of Betty Blanda”; 7 it does not name particular defendants. Nonetheless, the Amended Petition is clear that it 8 brings a claim against (among other Defendants) Thomas J. Cisar. (Doc. 1-5 at 2). The 9 Amended Petition further alleges “Thomas J. Cisar maintains a home in Maricopa County, 10 Arizona which is reported in the public records as his primary residence. He also actively 11 practices law in Arizona, serves in a fiduciary capacity before the Arizona courts, and 12 serves as a Trustee in various capacities.” (Doc. 1-5 at 3). Yet, the notice of removal 13 states, “[a]t the time Petitioner filed her original Petition in March of 2020, Defendants 14 Thomas Cisar and Margaret Cisar were Illinois domiciliaries.” (Doc. 1 at 3). The notice 15 of removal makes no argument as to why this Court should evaluate the citizenship of these 16 particular Defendants as of March 2020, but seemingly as of 2021 for all other parties. 17 Moreover, the notice of removal (implicitly) argues that the date of the Amended Petition 18 (June 17, 2021) controls removal. The notice of removal fails to address why the date of 19 the original Petition, or the date of the Amended Petition would be the relevant date to look 20 at the citizenship of the parties for purposes of diversity jurisdiction, rather than the date 21 of removal. 22 Sixth, assuming Mr. Cisar was a resident of Arizona at the time of removal, a 23 resident defendant cannot remove to federal court. 28 U.S.C. § 1441(b)(2) (“A civil action 24 otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this 25 title may not be removed if any of the parties in interest properly joined and served as 26 defendants is a citizen of the State in which such action is brought.”). While this Court 27 cannot sua sponte remand based on this, or any other procedural defect in removal, Plaintiff 28 may file a timely motion to remand on this (or any other) basis. See Kelton Arms 1 Condominium Owners, Ass’n, Inc. v. Homestead Insurance Co., 346 F.3d 1190, 1191 (9th 2 Cir. 2003). 3 Seventh, even when diversity jurisdiction is properly alleged before this Court, the 4 probate exception precludes this Court from accepting jurisdiction in certain 5 circumstances. See Goncalves By & Through Goncalves v. Rady Children's Hosp. San 6 Diego, 865 F.3d 1237, 1251–53 (9th Cir. 2017). Specifically, the Ninth Circuit Court of 7 Appeals, post-Marshall, has given the following guidance on the scope of the probate 8 exception: 9 “It is clear after Marshall that unless a federal court is endeavoring to (1) probate or annul a will, (2) administer a decedent’s estate, or (3) 10 assume in rem jurisdiction over property that is in the custody of the probate court, the probate exception does not apply.” Three Keys Ltd. v. SR Util. 11 Holding Co., 540 F.3d 220, 227 (3d Cir. 2008); accord Chevalier v. Estate of Barnhart, 803 F.3d 789, 801 (6th Cir. 2015); Lee Graham Shopping Ctr., 12 LLC v. Estate of Kirsch, 777 F.3d 678, 680–81 (4th Cir. 2015); Curtis v. Brunsting, 704 F.3d 406, 409 (5th Cir. 2013); see also Lefkowitz v. Bank of 13 N.Y., 528 F.3d 102, 106–07 (2d Cir. 2007) (“Following Marshall we must now hold that so long as a plaintiff is not seeking to have the federal court 14 administer a probate matter or exercise control over a res in the custody of a state court, if jurisdiction otherwise lies, then the federal court may, indeed 15 must, exercise it.”). It is not clear that the Supreme Court’s test in Marshall v. Marshall and our multi-step, multi-factor test in In re Marshall are 16 “clearly irreconcilable,” Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc), but Marshall surely represents a restatement and a refinement of the 17 test we had previously followed. We need not go so far as to announce that Marshall overruled the prior test, but we will accept the reformulation 18 adopted by the other circuits as a refinement. See Lefkowitz, 528 F.3d at 106 (recognizing that Moser’s test was “overly-broad and has now been 19 superseded by Marshall’s limitation of the exception”). In sum, the probate exception prevents a federal court from probating 20 a will, administering a decedent’s estate, or disposing of property in the custody of a state probate court. 21 Id. 22 Here, the notice of removal states, “On June 17, 2021, Plaintiff filed an Amended 23 Petition. Unlike the original Petition, the Amended Petition states no viable probate 24 proceeding.” (Doc. 1 at 2). However, this Court’s cursory review of the record reveals 25 that this whole case falls under the umbrella of the probate court administering a Trust as 26 part of Betty Blanda’s deceased husband’s estate. This Court’s review must be cursory 27 because, as indicated above, although this case has been pending since 2019, the first 28 document of record attached to the notice of removal is dated March 6, 2020. (Doc. 1-5 at 1 2). Thus, it is clear that this Court does not have the “full” record. 2 Nonetheless, based on the record before the Court, it appears that this entire matter 3 involves the administration of the will, trust and/or estate of Betty Blanda’s deceased 4 husband. Thus, it would appear that each of the three circumstances that would cause the 5 probate exception to federal subject matter jurisdiction to apply are present in this case. 6 Based on the foregoing, 7 IT IS ORDERED that the removing Defendant must file a supplement to the notice 8 of removal within 14 days addressing each jurisdictional issue identified herein. If no 9 supplement is filed within this deadline, this case will be remanded for all non-procedural 10 reasons identified herein. 11 IT IS FURTHER ORDERED that this Order is without prejudice to Plaintiff filing 12 a timely motion to remand on any/all of the bases discussed in this Order or for any other 13 reason Plaintiff deems appropriate. Any to-be-filed motion to remand shall be considered 14 to be Plaintiff’s response to the supplement to the notice of removal required herein. 15 IT IS FURTHER ORDERED that Defendants admit that the Amended Petition 16 was filed on June 17, 2021; thus, because Defendants have chosen to treat the Amended 17 Petition as the “operative complaint,” the answer or other response to this “document” is 18 due within 7 days of removal. See Fed. R. Civ. P. 81(c)(2). 19 IT IS FURTHER ORDERED that on this record, the Court cannot locate any 20 evidence that Defendant Robert Mrofka has appeared. Within 14 days, Plaintiff shall file 21 a status report regarding service on Defendant Robert Mrofka, and if appropriate, Plaintiff 22 shall move for entry of default. See Fed. R. Civ. P. 55(a). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IT IS FURTHER ORDERED that this Court has reviewed the state court’s denial 2|| of a motion to dismiss premised on personal jurisdiction and forum non conveniens (Doc. 1-8 at 9-12); the Court considers the state court’s order to be the law of the case. See Granny 4|| Goose Foods, Inc. v. Brotherhood of Teamsters Local 70, 415 U.S. 423, 436 (1974). 5 Dated this 12th day of July, 2021. 6 7 '
James A. CO 9 Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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