Opinion

Mehdipour v. C Craig Cole and Associates

Court
District Court, W.D. Oklahoma
Filed
Jan 7, 2022
Cited by
0 cases
Authority
More cited than 28.6%

“Under 28 U.S.C. § 1446(d) removal is effected by the defendant’s taking three procedural steps: filing a notice of removal in federal court, giving prompt written notice to adverse parties and filing a copy of the notice in state court.”

How later courts described this case

  • “Under 28 U.S.C. § 1446(d) removal is effected by the defendant’s taking three procedural steps: filing a notice of removal in federal court, giving prompt written notice to adverse parties and filing a copy of the notice in state court.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

FARAMARZ MEHDIPOUR and ALI )

MEHDIPOUR, )

)

Plaintiffs, )

)

v. ) Case No. CIV-21-00684-PRW

)

C. CRAIG COLE & ASSOCIATES, )

CINDY H. TRUONG, and APRIL D. )

COLLINS, )

)

Defendants. )

ORDER

Before the Court are two separate motions to dismiss—Defendants Cindy H. Truong

and April D. Collins’ Motion to Dismiss (Dkt. 5) with Plaintiffs Faramarz and Ali

Mehdipour’s Response in Opposition (Dkt. 12), and Defendant C. Craig Cole &

Associates’ Motion to Dismiss (Dkt. 6) with Plaintiffs’ Response in Opposition (Dkt. 11).

Since the Oklahoma County District Court entered an order of dismissal prior to the

effective removal of this case from state court, the Court REMANDS the case back to the

Oklahoma County District Court for entry of judgment and VACATES AS MOOT both

motions to dismiss.

Background

Faramarz Mehdipour and Ali Mehdipour filed this case against Oklahoma County

District Judge Cindy H. Truong and C. Craig Cole & Associates, generally alleging that

Judge Truong and the law firm had conspired to deprive the Mehdipours of their Due

Process rights through fraudulent and bad-faith litigation. The Mehdipours later amended

their complaint to also include Special Judge April D. Collins. The various defendants

employed different strategies to address the suit—Judge Truong and Judge Collins decided

to remove the case to federal court, while C. Craig Cole & Associates decided to seek

dismissal of the case while still in state court. On July 7, 2021, Judge Truong and Judge

Collins filed a Notice of Removal with this Court.1 Two days later, on July 9, 2021, the

Oklahoma County District Court ordered the case dismissed.2 Later that same day—after

the order of dismissal was entered—Judge Truong and Judge Collins notified the state court

and the Medhipours of the removal to federal court by filing a “Notice of Notice of

Removal” in the state court.3

Discussion

28 U.S.C. § 1446 provides the general procedure and statutory authority for

removing a case from state court to federal court. Of particular relevance to this case are

subsections 1446(a) and 1446(d). Subsection 1446(a) states:

A defendant or defendants desiring to remove any civil action

from a State court shall file in the district court of the United

States for the district and division within which such action is

pending a notice of removal signed pursuant to Rule 11 of the

Federal Rules of Civil Procedure and containing a short and

plain statement of the grounds for removal, together with a

copy of all process, pleadings, and orders served upon such

defendant or defendants in such action.

1 See Notice of Removal (Dkt. 1).

2 See Court Order (Dkt. 6, Ex. 2).

3 See Docket Sheet (Dkt. 6, Ex. 1), at 5.

Subsection 1446(d) states:

Promptly after the filing of such notice of removal of a civil

action the defendant or defendants shall give written notice

thereof to all adverse parties and shall file a copy of the notice

with the clerk of such State court, which shall effect the

removal and the State court shall proceed no further unless and

until the case is remanded.

Since the process of removal is entirely a statutory right, the relevant procedures to

effect removal must be followed.4 A removal that does not fully comply with the express

statutory requirements is incomplete.5 Subsections 1446(a) and 1446(d) combine to

establish three clear steps to effectuate a removal: (1) filing a notice of removal in federal

court, (2) giving prompt written notice to adverse parties, and (3) filing a copy of the notice

in state court. Although some courts believe that removal is effective from the time the

notice of removal is filed with the federal court, the clear language of the statute itself

indicates completion of all three steps is required to “effect the removal.”6 Both this Court

and the Tenth Circuit have previously adopted this approach.7 Each of the three required

steps “provides important notice to a relevant actor: the federal court, the adverse parties,

4 See, e.g., De La Rosa v. Reliable, Inc., 113 F. Supp. 3d 1135, 1155 (D.N.M. 2015

5 See id.; see also Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072, 1077 (10th

Cir. 1999).

6 28 U.S.C. § 1446(d).

7 See Bundy v. Progressive Direct Ins. Co, 762 F. Supp. 2d 1336, 1337 n.2 (W.D. Okla.

2011); see also Browning v. Am. Family Mutual Ins. Co., 396 F. App’x 496, 505 (10th Cir.

2010) (“Under 28 U.S.C. § 1446(d) removal is effected by the defendant’s taking three

procedural steps: filing a notice of removal in federal court, giving prompt written notice

to adverse parties and filing a copy of the notice in state court.”). The Court cites

unpublished decisions of the Tenth Circuit for their persuasive value, consistent with Tenth

Cir. R. 32.1 and Fed. R. App. P. 32.1.

and the state court.”8 Indeed, as one leading treatise observed, it would be odd for removal

to be effectuated after only the filing of notice with the federal court, since otherwise “a

state court [could] be stripped of its jurisdiction even though it has not received notice of

removal.”9

Although after removal of a case from state court to federal court the state court

must “proceed no further,”10 the federal court must also give “full force and effect” to all

“injunctions, orders, and other proceedings . . . in such action prior to its removal.”11 As

the Supreme Court observed, “Congress clearly intended to preserve the effectiveness of

state court orders after removal . . . . the federal court ‘takes the case up where the State

court left it off.’”12 In other words, an order entered by the state court prior to the

completion of the steps of removal—prior to the effectuation of a removal—is valid and

fully enforceable. Here, the Oklahoma County District Court ordered this case dismissed

after the removal process began but before all removal steps were completed. Since that

8 Browning, 396 F. App’x at 505.

9 14C Wright & Miller, Federal Practice & Procedure, § 3736 Procedure for Removal—

When Removal is Effective; Further Proceedings in State Court (rev. 4th ed.) (concluding

“the sounder rule, and the one most consistent with the language of Section 1446(d) of

Title 28, is that removal is not effective until the defendant has taken all the steps required

by the federal statute”); see also American Law Institute, Study of the Division of

Jurisdiction Between State & Federal Courts, Official Draft, at 357 (1969) (“It is unseemly

to have state courts passing on matters, only to learn later that they had no jurisdiction.”).

10 28 U.S.C. § 1446(d).

11 28 U.S.C. § 1450.

12 Granny Goose Foods v. Bhd. of Teamsters, Local No. 70, 415 U.S. 423, 436 (1974)

(quoting Duncan v. Gegan, 101 U.S. 810, 812 (1880)).

order of dismissal was validly entered prior to this Court assuming jurisdiction over the

case, it must be enforced.

As an order of dismissal terminated this case prior to the completion of removal as

required by 28 U.S.C. § 1446 and applicable precedents, this Court cannot consider any

matters in this case. Accordingly, the Court REMANDS the case back to the Oklahoma

County District Court for an entry of judgment pursuant to the valid order of dismissal, and

VACATES AS MOOT all pending motions filed with this Court.

IT IS SO ORDERED the 7th day of January 2022.

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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