F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 14, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT
MARK J. HUNT,
Appellant,
v. No. 04-3366
FRANCHESKA LAMB, also known
as Francheska Hunt,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 04-CV-4047-JAR)
Submitted on the briefs:
Mark Joel Hunt, pro se, Appellant.
Linda R. Mitchell, Silver Lake, Kansas, for Appellee.
Before EBEL, HARTZ , and McCONNELL , Circuit Judges.
McCONNELL , Circuit Judge.
This is a pro se appeal from a district court order in a removed action that
dismissed appellant’s complaint under the Rooker-Feldman and Younger
doctrines. Because this case was improvidently removed from state court, the
federal district court’s only option was to remand. Therefore, we vacate the
dismissal order, remand to the district court, and instruct the district court to
remand the case to state court. *
B ACKGROUND
Appellant Mark Hunt and appellee Francheska Lamb were divorced in 1995
and given joint legal custody of their two minor children. Residential custody
was initially given to Lamb, but later changed to Hunt. In early 2004, Lamb
persuaded the state court to restore her residential custody based on domestic
violence in Hunt’s home and the possibility that Hunt “would be prosecuted for a
high level felony sexual offense.” Aplee. App. at 21-22. The court’s custody
decision bore the same case number as the parties’ divorce action and was
captioned, “In the Matter of the Marriage of Francheska Lamb (a.k.a. Hunt) v.
Mark J. Hunt.” Hunt unsuccessfully sought reconsideration and disqualification
of the presiding judge.
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
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On May 7, 2004, Hunt filed in the United States District Court a notice of
removal under the same caption employed in the state court. The notice provided
that “a Federal Court need[s] to impede within this case to preserve justice, as
well as, the Federal laws.” R., Tab 1 at 2. On June 1, 2004, Hunt filed a “Motion
for Leave of Court,” asking the district court to review a “Complaint” he had
drafted, which he styled as a “civil rights action . . . for the abuse of power and
illegal actions by” Lamb and the state court, but which contained no request for
relief. R., Tab 5 at 3. Both the motion and the “Complaint” bore the domestic
relations caption and were filed under the notice of removal’s case number.
On August 16, 2004, a federal magistrate judge construed the notice of
removal as a collateral attack on the state court proceedings and directed Hunt to
file a complaint that specified the relief he was seeking. Hunt did so on
September 7, 2004, filing an “Amended Complaint” that sought an injunction
restoring his residential custody and barring Lamb and her husband “from any
future direct or indirect disturbances . . . into [Hunt’s] life.” R., Tab 8 at 6. Hunt
also sought to recover lost wages and child support payments. The “Amended
Complaint” bore the domestic relations caption and the notice of removal’s case
number.
On September 24, 2004, the federal district court sua sponte dismissed
Hunt’s “Amended Complaint” on two grounds. First, the court briefly noted that
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it lacked subject matter jurisdiction under Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983), to review a state court’s decision. The court then explained in more detail
that it was required to abstain under Younger v. Harris, 401 U.S. 37 (1971), from
issuing any injunctive relief. Hunt appealed.
D ISCUSSION
Under 28 U.S.C. § 1441(a), a defendant in a state court civil action may
remove the action to federal court if the federal court has original jurisdiction
over the action. In other words, removal is reserved for those cases “that
originally could have been filed in federal court.” Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987). “This jurisdictional prerequisite to removal is an
absolute, non-waivable requirement.” Brown v. Francis, 75 F.3d 860, 864
(3d Cir. 1996).
Here, the underlying state court civil action involved child custody.
Because Lamb could not have initiated this action in federal court, Hunt could not
remove it to federal court. It is well-established that federal courts lack
jurisdiction over “‘[t]he whole subject of the domestic relations of husband and
wife, [and] parent and child.’” Ankenbrandt v. Richards, 504 U.S. 689, 703
(1992) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890) (first alteration in
original)); see also 28 U.S.C. § 1331 (giving district courts original jurisdiction
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over “civil actions arising under the Constitution, laws, or treaties of the United
States”). As the district court lacked jurisdiction over Hunt and Lamb’s child
custody dispute, it was required by 28 U.S.C. § 1447(c) to remand the action to
state court. The district court could not avoid the statutory mandate simply by
directing Hunt to file a complaint and then dismissing it. See Brown , 75 F.3d at
866 (stating that a court may not “exercise authority over a case for which it does
not have subject matter jurisdiction”); Fent v. Okla. Water Res. Bd. , 235 F.3d
553, 557-58 (10th Cir. 2000) (stating that Ҥ 1447(c) gives no discretion to
dismiss rather than remand an action removed from state court over which the
court lacks subject-matter jurisdiction”) (quotation marks omitted).
To the extent that Hunt sought removal to vindicate his civil and
constitutional rights, remand was still required. Generally speaking, “a case may
not be removed to federal court solely because of a defense or counterclaim
arising under federal law.” Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1247
(10th Cir. 2005). An exception to this rule is 28 U.S.C. § 1443, which allows
removal to address the violation of a right to racial equality that is unenforceable
in state court, see Georgia v. Rachel, 384 U.S. 780, 792 (1966). But nothing in
Hunt’s notice of removal suggests that § 1443 applies here.
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C ONCLUSION
Because the district court lacked subject matter jurisdiction over the
underlying state court child custody proceedings, it erred in not remanding the
case to state court. 1
Accordingly, we vacate the district court’s dismissal order,
remand the case to the district court, and instruct the district court to remand the
case to state court.
We deny Hunt’s motions for injunctive relief, to supplement the record, and
to add a third-party defendant. 2
1
Because the district court lacked jurisdiction, its order directing Hunt
to file a complaint was a nullity. See Morongo Band of Mission Indians v. Cal.
State Bd. of Equalization , 858 F.2d 1376, 1380-81 (9th Cir. 1988). It necessarily
follows that Hunt’s complaint was also a nullity.
2
We also deny Hunt’s requests for “recusal” of a state court judge and
a “change of venue . . . outside of Shawnee County when this Matter is returned
to the State level,” Aplt. Reply Br. at 6.
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