Ritter v. Ritter , 396 F. App'x 30 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1452
E. KERFOOT RITTER, JR.,
Plaintiff - Appellee,
v.
MARTHA RITTER,
Defendant - Appellant.
No. 07-1595
MARTHA RITTER,
Plaintiff - Appellant,
v.
E. KERFOOT RITTER, JR.; THE EUGENE KERFOOT RITTER TRUST,
Defendants - Appellees.
No. 07-1611
E. KERFOOT RITTER, JR.,
Plaintiff - Appellee,
v.
MARTHA RITTER,
Defendant - Appellant.
No. 07-1712
MARTHA RITTER,
Plaintiff - Appellant,
v.
THE EUGENE KERFOOT RITTER TRUST; F. GILBERT HARMAN, Co-
Trustee; LUCILLE RITTER, Co-Trustee (deceased 1/28/04);
ARNOLD LERMAN; E. KERFOOT RITTER, JR.,
Defendants - Appellees.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge; Roger W. Titus, District Judge; Peter J. Messitte, Senior
District Judge. (8:07-cv-01060-AW; 8:06-cv-02665-RWT; 8:07-cv-
00539-PJM)
Submitted: August 30, 2010 Decided: September 17, 2010
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
No. 07-1452 dismissed; No. 07-1595 affirmed as modified; No. 07-
1611 vacated; No. 07-1712 affirmed by unpublished per curiam
opinion.
Martha Ritter, Appellant Pro Se. Alan Stuart Feld, BULMAN,
DUNIE, BURKE & FELD, CHTD, Bethesda, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Martha Ritter filed three notices of removal in the
district court. In two of the removal notices, she removed a
state court action (the 1996 action) that she initiated in 1996
in the Circuit Court for Montgomery County, Maryland. In the
third removal notice, she removed a second state court action
(the 1993 action) originally filed in the Circuit Court for
Montgomery County. The second action commenced in 1993 when
Martha’s brother, Kerfoot, filed a complaint for an emergency
restraining order against Martha. * The district court remanded
the removed actions to the state court. Martha now appeals from
four orders entered by the district court. The appeals have
been consolidated.
Nos. 07-1452; 07-1611
In No. 07-1452, Martha appeals the district court’s orders
remanding the 1993 action, which she had removed, to the state
court and denying her Fed. R. Civ. P. 59(e) motion for
reconsideration. The court’s remand order was based in part on
the court’s determination that the complaint did not “sustain
federal jurisdiction under any jurisdictional theory.”
*
The state court docket number assigned to the 1993 actions
was 110498. The docket number assigned to the 1996 action was
153962.
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Subject to an exception not applicable here, remand orders
are generally “not reviewable on appeal or otherwise.” 28
U.S.C. § 1447(d) (2006). Because “§ 1447(d) must be read in
pari materia with § 1447(c), . . . only remands based on grounds
specified in § 1447(c) are immune from review under § 1447(d).”
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995).
“A remand order based on a lack of subject matter jurisdiction,
whether sua sponte or not, falls within the scope of § 1447(c),
and is therefore not reviewable by a court of appeals.”
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196
(4th Cir. 2008). Because the district court’s sua sponte remand
was based in part on lack of subject matter jurisdiction, we
dismiss No. 07-1452.
In addition to its orders remanding the removed action and
denying Rule 59(e) relief, the district court entered an order
imposing a prefiling injunction. In No. 07-1611, Martha appeals
from this order.
In its order, the district court erroneously stated that
Martha had removed the 1996 action on three occasions. In fact,
Martha removed that action twice and removed the 1993 action
once. In light of this factual error, we conclude that the
district court abused its discretion in issuing the prefiling
injunction, and we vacate the district court’s order.
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No. 07-1595
This appeal involves Martha’s removal of the 1996 action.
The district court sua sponte remanded the matter to state court
because “the right of removal is not accorded to a plaintiff.”
Martha filed a Fed. R. Civ. P. 59(e) motion for reconsideration,
which the district court denied. She now appeals the orders
remanding the case and denying her Rule 59(e) motion. We have
jurisdiction to review the propriety of the district court’s
remand on procedural grounds because the court did not grant a
motion to remand, but instead issued its order sua sponte.
“[E]very appellate court has a special obligation to
satisfy itself not only of its own jurisdiction, but also that
of the courts in a cause under review.” Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986) (internal quotation
marks omitted). “‘[I]f the record discloses that the lower
court was without jurisdiction [the appellate] court will notice
the defect.’” Id. (quoting United States v. Corrick, 298 U.S.
435, 440 (1936)). Questions of subject matter jurisdiction may
be raised sua sponte by the court. Id. If the appellate court
concludes that the district court was without subject matter
jurisdiction, the action must be dismissed. Interstate
Petroleum Corp. v. Morgan, 249 F.3d 215, 219 (4th Cir. 2001).
The district court lacked subject matter jurisdiction over
the removed action. That action presented no federal question.
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Further, complete diversity was lacking. In the notice of
removal, Martha identified herself as the Plaintiff and Kerfoot
and the Eugene Kerfoot Ritter Trust as the Defendants. Two
Trustees of the Trust identified by Martha in the removal notice
were citizens of Maryland. Therefore, complete diversity was
lacking, for Martha also is a Maryland citizen.
We accordingly affirm as modified. The district court’s
order of remand is modified to reflect that the remand is based
on want of subject matter jurisdiction.
No. 07-1712
The notice of removal in this case pertained to the 1996
action. Kerfoot filed a motion for remand, which the district
court granted upon the determination that Martha was “the
Plaintiff in the underlying state court action.” In its order,
the court also granted Kerfoot’s motion for attorney’s fees,
awarding him $500. Martha filed a Fed. R. Civ. P. 60(b) motion
for reconsideration, which the district court denied. She
appeals the district court’s denial of that motion. We conclude
that Martha did not establish entitlement to relief under Rule
60(b), and that the district court accordingly did not abuse its
discretion in denying the motion. See Heyman v. M.L. Mktg. Co.,
116 F.3d 91, 94 (4th Cir. 1997). We therefore affirm.
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Conclusion
We dismiss No. 07-1452, affirm No. 07-1595 as modified,
vacate the order in No. 07-1611, and affirm No. 07-1712. The
motions for sanctions and reconsideration are denied. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
No. 07-1452 DISMISSED
No. 07-1595 AFFIRMED AS MODIFIED
No. 07-1611 VACATED
No. 07-1712 AFFIRMED
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