Koch v. Koch

          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] ...