United States District Court, D. Connecticut
ORDER DISMISSING AND REMANDING THE ACTION
VICTOR
A. BOLDEN UNITED STATES DISTRICT JUDGE
On July
9, 2018, the Court ordered Paul Koch
(“Plaintiff”) to show cause why this Court has
subject matter jurisdiction over this action and why his
removal of the action from the Stamford Probate Court was
proper. Order to Show Cause, dated July 9, 2018
(“OTSC”), ECF No. 12. Based on Mr. Koch's
“preliminary response” on August 13, 2018, and
his failure to file any further response to the Court's
show cause order for the past two months, the Court concludes
that that it lacks subject matter jurisdiction over this
action as it was not properly removed according to the
procedures outlined in 28 U.S.C. § 1446. Moreover, even
if the action were properly removed, the Court would not have
subject matter jurisdiction over the underlying action.
The
Court therefore finds that this action must be
DISMISSED AND REMANDED back to the Stamford
Probate Court.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On June
28, 2018, Mr. Koch removed this case from the Stamford
Probate Court in Stamford, Connecticut. Notice of Removal,
dated July 24, 2018, ECF No. 1. Attached to Mr. Koch's
Notice of Removal is an unsigned, incomplete, three-page
document titled “Petition for Appointment of a
Conservator” that seeks to have his wife, Victoria Koch
(“Defendant”), found mentally incapacitated and
her estate placed into involuntary conservatorship. Petition
for Appointment of a Conservator, annexed as Ex. B to Notice
of Removal. In the Notice, Mr. Koch claims to be acting as
“husband and attorney in fact for Victoria Koch.”
Notice of Removal at 1.
A
hearing notice annexed to the Notice of Removal indicates
that a hearing in the involuntary conservatorship action was
scheduled for June 28, 2018 at 1:00 p.m. at the Stamford
Probate Court-the same day that Mr. Koch removed the action
to this Court. Scheduling Order, dated June 13, 2018, annexed
as Ex. C to Notice of Removal.
The
same day that he removed the action, Mr. Koch also filed a
motion to proceed in forma pauperis. Motion for
Leave to Proceed in forma pauperis, dated June 28,
2018, ECF No. 2. Then, on June 29, 2018, he filed a combined
emergency motion for injunctive relief, to stay the action,
and motion for a hearing. See Emergency Motion for
Injunction, Motion to Stay, dated June 29, 2018, ECF No. 6.
On July
2, 2018, Ms. Koch moved to withdraw the notice of removal
filed by Mr. Koch, in which she contests his authority to
make this filing on her behalf. Motion to Withdraw Notice of
Removal, dated July 2, 2018 (“Mot. to Withdraw”),
ECF No. 9. Her motion included an affidavit stating that she
and Mr. Koch are currently estranged, that she is currently
in the middle of an “extremely contentious”
dissolution of marriage action against him, that Mr. Koch
“has used every means possible in which to attempt to
annoy, delay, harass and unnecessarily complicate the legal
actions to which I am involved, ” and that Mr.
Koch's power of attorney to act on her behalf “has
been revoked” as of November 15, 2017. Affidavit of
Victoria Koch Re: Objection to Motion for Notice of Removal,
dated July 1, 2018 (“V. Koch Aff.”) annexed to
Mot. to Withdraw, ¶¶ 6-12. Ms. Koch further claims
that Mr. Koch is currently living at the home at 2 Random
Road, Old Greenwich, CT 06870 “without paying any costs
whatsoever and he wishes to continue to do so by defrauding
the Courts and creating controversy by filing false
documents.” Id. ¶ 13. Ms. Koch also
attaches two documents-one executed in Connecticut and one in
New York, and both witnessed-which indicate that she
expressly revoked Mr. Koch's power of attorney in
November 2017. See Revocation of Power of Attorney
(Connecticut), dated November 15, 2017, annexed to Mot. to
Withdraw; Revocation of Power of Attorney (New York), dated
November 15, 2017, annexed to Mot. to Withdraw.
On July
9, 2018, this Court ordered Mr. Koch to show cause by July
27, 2018 why this Court has subject matter jurisdiction over
this action, given that his notice of removal “does not
appear to provide any basis for the Court to exercise subject
matter jurisdiction over this case.” OTSC at 1. This
Court also ordered Mr. Koch to show cause why his removal of
the action from the Stamford Probate Court was proper, given
that he (1) is not the defendant in the action; (2) did not
include the required process, pleadings, and orders served in
the removed action; (3) that he did not comply with the
requirements of the Court's Standing Order on Removed
Cases. Id. at 1-2.
Mr.
Koch requested an extension of time to respond until August
13, 2018, which this Court granted. Order Granting Motion for
Extension of Time, dated July 30, 2018, ECF No. 14. On August
13, 2018, Mr. Koch filed another motion to extend time until
September 4, 2018, which was largely identical to the
previous motion. Both extension motions also included a
section entitled “Preliminary Response - Legal Grounds
for Subject Matter Jurisdiction and Why Removal of the Action
was Proper.” Emergency Motion for Extension of Time,
dated Aug. 13, 2018 (“Emergency Mot.”), ECF No.
15.
The
Court did not immediately act on the second extension motion,
but September 4, 2018 came and went with no further filing
from Mr. Koch. More than a month has passed since the
requested deadline and no additional response to the Order to
Show Cause has been filed.
II.
DISCUSSION
A.
Removal was Improper
Under
the removal statutes, only a defendant may remove an action
to federal court. 28 U.S.C. §§ 1441(a), 1446(a);
see Yonkers Racing Corp. v. City of Yonkers, 858
F.2d 855, 863 (2d Cir. 1988) (“[A] ...