The Friends of the Fogbow have provided us with the transcript of the Mississippi hearing full of goodies:
After the Secretary of State and the Democratic Party made their arguments as to why the removal was proper, the Court presses Orly on her ‘arguments, which include: (1) The removal was done from Superior Court when the Mississippi Supreme Court had jurisdiction. (2) The removal was flawed since it did not involved all the served parties (3) the case could have been heard in a State Court with supplemental jurisdiction.
The Judge walks her through every one of her ‘arguments’. When asked to cite any statutes or authorities, she fails. When the Judge asks her about Rule 5F or the case of Getty Oil, the answers with a denial.
Rule 5F shows why filing an interlocutory appeal with the Mississippi Supreme Court did not stay the proceedings. Orly was not even familiar with said rule. I wonder if she even read the defendants’ response briefs?
(f) Effect on Trial Court Proceedings. The petition for appeal shall not stay proceedings in the trial court unless the trial judge or the Supreme Court shall so order.
While the defendants have cited relevance statutes and authorities, Orly has failed to properly do her homework.
The transcript shows how the Court is giving Orly every opportunity to make her case but calls her on issues where she is wrong or where she is unable to cite any relevant authority. In the end, the Court masterfully walked Orly through her arguments and had her state on the record her answers. Any appeal will be doomed to failure.
Orly has three weeks to file a RICO brief, respond to the judgment on the pleadings, and serve the defendants properly. She is also put on notice that she may face sanctions.
Expect the Court to rule on the judgment on the pleadings which should be the end of the case. Of course, Orly will file motions and emergency motions for reconsideration and she will file motions with the Supreme Court and other Courts but in the end, she has doomed her case in MS and with it her cases in CA and TX.
THE COURT: But now we need to deal with the motion to remand.
DR. TAITZ: Yes.
THE COURT: And so I need to hear legal arguments as to why the court should grant your motion to remand. So what other legal arguments do you have?
DR. TAITZ: A, the removal was done from a court that did not —
THE COURT: You already said that. What else?
DR. TAITZ: — have jurisdiction. Two, they did not, they did not join all the parties.
THE COURT: All right. I heard that. And your third argument?
DR. TAITZ: Third, that the case could have been heard in the state court with supplemental jurisdiction —
THE COURT: I don’t understand that argument.
DR. TAITZ: The state court often hears cases that are a mixture of both state and federal statutes. The state court can rule on, on such statutes as RICO if, if other parties agree to that. And we don’t know. The other parties might agree to proceed in the state court; they just didn’t give other parties an opportunity to decide. And the defendants do not represent other parties. And, and they did not — I did all my due diligence in the this case. I served all the parties with a complaint, I provided proof of service —
[NBC: The Court later explains, based on Orly’s own statements, why Orly has not done all her due diligence, why she has not properly served all parties, and why she is still negligent in some of her outstanding attempts to serve the additional parties.]
THE COURT: Does your service meet the prerequisites of Mississippi Rule 4?
DR. TAITZ: Well, considering the circumstances as the case was pending, that’s the only thing that I could do. I could not issue summons from a court that does not have jurisdiction, and there is no judge.
THE COURT: Okay. That’s what you said earlier.
[NBC: In other words, no it did not meet the prerequisites of Mississippi Rule 4]
DR. TAITZ: And —
THE COURT: So then you’re saying that you were unable to comply with Rule 4.
DR. TAITZ: I was unable to fully comply with that requirement due to the fact that the court from which they removed did not have jurisdiction. On the other hand, the defendants did not do their due diligence because they had an opportunity to contact the other defendants and seek their consent with reservation of rights, and they did not do so.
[NBC: Unable to comply is an admission of failing to meet the prerequisites of Mississippi Rule 4. And there is no requirement that the defendants contact unserved defendants.]
THE COURT: Does the law require them to do that?
DR. TAITZ: Well, if they are —
THE COURT: No. Does the law require served defendants to contact unserved defendants to see if they would agree with removal?
DR. TAITZ: Well —
THE COURT: That’s a specific question. Let me ask it again. Do served defendants have an obligation to contact unserved defendants to see if the unserved defendants will agree to removal? What’s your answer as to what the law requires?
[NBC: The Court is very patient but persistent in having Orly admit that indeed the law does not require them to do that.]
DR. TAITZ: My answer is that the other defendants could not be categorized as unserved; they can be categorized as defendants who were served, but service was incomplete due to the fact that the case was pending. And if —
THE COURT: Unserved. And so then what does the law say about the question I just asked?
DR. TAITZ: Well, the law say, says that in this particular case they have no right to remove.
THE COURT: So what law — so then what statute or case authority do you have on your side on this particular point?
[NBC: Now the Court is pinning Orly down asking her to provide specific statutes or authority.]
DR. TAITZ: Well —
THE COURT: Cite me a case.
DR. TAITZ: Your Honor —
THE COURT: Or either cite me a statute.
DR. TAITZ: Your Honor, there was, I believe, that there was never a case where a party removes from a court that doesn’t have jurisdiction and doesn’t have the case.
THE COURT: So you don’t have a case on this.
DR. TAITZ: No, I’m bringing here, and I’m asking to admit into evidence the docket of the Supreme Court of Mississippi showing, and that’s the strongest argument, showing that the case was in front of —
THE COURT: I know. You have said that many times.
[NBC: still showing restraint but insistent..]
DR. TAITZ: Yes —
THE COURT: And I’m asking you, is — what is your authority? Statutory authority or case authority? What do you have?
DR. TAITZ: In the this case it’s a statutory authority. Is that —
THE COURT: So what is it?
DR. TAITZ: There is no statute allowing them to remove from the court that doesn’t have the case.
THE COURT: So then what statute or case says that?
[NBC: The court keeps asking for specifics. Orly has none.]
DR. TAITZ: Your Honor, it’s —
THE COURT: Do you have any authority at all?
DR. TAITZ: Well —
THE COURT: Any authority.
DR. TAITZ: The 1331 that they are using for removal that when the case is removed, it is removed from a presumes court that has jurisdiction.
THE COURT: Okay. And so the answer is you don’t have any authority on this.
[NBC: ROTFL, the Court is very observant.]
DR. TAITZ: So the authority is 1331 because —
THE COURT: Okay. 1331, which provides federal question jurisdiction. It does not provide what you just stated.
DR. TAITZ: But removal has to be from the court that has jurisdiction.
THE COURT: Okay.
[NBC: The court is granting Orly the opportunity to further argue this aspect. Do we expect any better outcome?]
DR. TAITZ: If the case is in Mississippi —
THE COURT: You keep saying the same thing over and over and over. And I keep asking you for authority for your position. If you have some authority or position, I would like to hear it.
DR. TAITZ: No, Your Honor, I don’t have —
THE COURT: So do you have any authority whatsoever?
DR. TAITZ: Well, I believe —
THE COURT: The other side has provided authority for its position. Do you have authority for your position?
[NBC: Nice… The Court has taken notice of the fact that the defendants have cited relevant authority and that Orly has done nothing of the kind.]
DR. TAITZ: Your Honor, they never provided — show me. Where is the authority that allowed them to remove from the court that doesn’t have the case? Did they provide such authority? No. Zero. There is no such —
THE COURT: What they provided was authority that anytime a lawsuit takes on a federal character that the lawsuit can be removed from any state court, and there is no limitation on which state court from which the lawsuit may be removed.
Their argument is quite simple, that once you’ve filed a first amended complaint and added a federal RICO claim, does that imbue that lawsuit with federal character? Once federal character is evident in a lawsuit, the defendants, then, have the authority to seek removal under Section 1331, which is what they did, because of your federal RICO claim.
In your first amended complaint you added RICO. That was your decision to add RICO. As soon as you added a federal RICO claim, then the defendants contend that that imbued that lawsuit with a federal character.
Your argument before was that the state court is perfectly capable of handling a federal RICO claim. I agree, the state court is. But the law also says that this is the choice of the defendants. If the defendant wishes their claim to be heard in federal court, the defendants have a right to seek removal based on that federal claim, no matter that the state court is competent to hear the claim. The defendants have the choice under the law whether to seek removal based on that federal claim.
So as soon as you filed your first amended complaint, they then sought removal to this court based on that federal complaint.
The law, as they have submitted to me, does not depend upon in which court the action may be pending in state court, whether it’s a trial court or an appellate court. That once the matter takes on a federal character, then the matter may be removed.
I have asked you for your authority in opposition to these points, and I’m still waiting.
[NBC: The Court has understood the arguments presented and continues to give Orly a chance to properly respond.]
DR. TAITZ: Your Honor, however, they did not provide you with — they’re saying that it can be removed. However, they did not provide you with an authority that states that it can be removed from a court that at the moment that they’re removing does not have jurisdiction. Their point is — we know that we have to join other parties.
THE COURT: Let me stop you there. So then it is your contention that a state court could prevent a defendant from seeking removal on a federal claim? Now, you’re not saying that, are you?
[NBC: The Court is taking control and forcing Orly to focus. Orly has to admit that indeed, there is no such rule or authority.]
DR. TAITZ: No.
THE COURT: Because the whole point of removal —
DR. TAITZ: No.
THE COURT: — is that the lawsuit has taken on a federal character. So then surely you’re not saying that the state court in any kind of way can frustrate removal to the federal court on a federal question. How can a state court, I don’t care which court it is in the state court, have that authority and that reach?
How can a state court prevent a defendant from alleging to federal court that a federal question is now involved in this lawsuit and I want that federal question heard in federal court, which is my right under Section 1331?
How can it matter whether that lawsuit is in the state court, lower court or higher court once the character of that lawsuit’s changed? How does it matter?
DR. TAITZ: Your Honor, that’s not what I’m saying. What I am saying is that there is — they have never shown a case where the defendants are claiming what they’re claiming. They’re saying we know that we have had to join everybody. We know that. We admit that we did not join everybody. We admit that she served them with a complaint. Our point is that she — that even though we had the duty to join everybody — what — not — yourself properly
THE COURT: That’s properly served.
DR. TAITZ: — we are saying that because she did
THE COURT: Hold it. That’s properly served. You have admitted that these other defendants were not served.
[NBC: Hahaha. Yes Orly, the Judge is no fool.]
DR. TAITZ: However, they did not show one single case that would show the same circumstance where the other parties were served with a complaint, but the plaintiff could not serve them with the summons because the case was stayed, was pending, and summons could not have been issued at the time.
Where is their authority? Where is the precedent saying that this is allowed? They’re admitting that they had to get consent from all the parties.
THE COURT: Now, let’s talk about your first amended complaint. Your first amended complaint added — sought to add some more parties; is that correct?
[NBC: The Judge is now taking on Orly’s next argument… What a Judge]
DR. TAITZ: I’m sorry. I didn’t hear.
THE COURT: Your first amended complaint sought to add some additional parties?
DR. TAITZ: Yes.
THE COURT: Did you seek to serve them?
DR. TAITZ: Yes. Yes, and I —
THE COURT: So how did you do it? You did it by mail;is that correct?
DR. TAITZ: Yes, certified mail, yes.
THE COURT: Now, at that time you had the prerogative to serve them in a proper fashion.
[NBC: Haha, the Judge immediately understands that Orly sending a certified mail is not proper under the Mississippi rules]
DR. TAITZ: No, I couldn’t, because it was —
THE COURT: Well, what did do you then?
DR. TAITZ: I had to wait for the case to be —
THE COURT: Did you send them things through the mail?
DR. TAITZ: I couldn’t issue the summons. I didn’t summons.
[NBC: So they were not served. Thank you Orly…]
THE COURT: I know, but did you send them material through the mail?
DR. TAITZ: Yes.
THE COURT: So then are you saying, then, there’s proper service?
[NBC: Nice… Again the Judge is asking her to support her claims.]
DR. TAITZ: It is, it is proper service by certified mail. However, what they are saying, their only argument, she served them with a complaint, but she did not serve them with summons. And that is why, even though we have a duty to join all of them, we excused — we are excused because the service to other parties was not, was not complete.
And I’m saying if they’re excused, then I’m excused as well because of impossibility. It was impossible for me to add the summons — to have the summons issued because at that point the case was pending in the Superior Court awaiting the Supreme to serve have the Court of Mississippi.
So if you are accepting their excuse, you have to accept my excuse because my excuse is based on impossibility. There was nothing impossible for them. They could wait for the Supreme Court to assign a judge for the — for me to serve the other parties with summons. It was five days, not 120 days that I allowed, only five days. If they accept — if you’re accepting their excuse, then you have to accept my excuse, which is much stronger. It’s an excuse of impossibility. It was impossible for me.
And that is why I believe that it is proper to remand the case to the Supreme Court of Mississippi where it was, and allow for reasonable amount of time for the Supreme Court to assign the judge for it to go back to the Superior Court of Hinds County.
It would have — it would have the case. I would be able to issue summons for the additional defendants, serve them — well, serve them with a complaint, serve them with summons as well, and if the other party want to join, then they have an option of doing so.
THE COURT: removal of a case?
DR. TAITZ: It was stayed because the moment —
THE COURT: Hold it. Hold it. What about the 30-daytime period for removal of a case from state court when the Now, what about the 30-day time limit for case takes on federal character?
[NBC: The Court immediately understands that under Orly’s scenario the 30 day time limit would likely run out before the defendants could file for removal. Clearly that is not logical.]
DR. TAITZ: It was stayed because it was not —
THE COURT: Well, hold it. How can — you’re saying the Mississippi Supreme Court can stay the federal rules?
DR. TAITZ: No, they — but 30 days — not in a case that is stayed. The case was stayed.
[NBC: In other words, the State Court did not stay the 30 day clock. Thank you Orly.]
THE COURT: You’re not answering my question.
[NBC: A common issue it appears]
So you’re saying the 30-day rule, which says that the defense, if it’s going to remove, has to do so in that time period once the case takes on a federal character.
You filed your complaint on a certain date that involved RICO, federal RICO. They had 30 days after you filed that amended complaint to seek removal under the federal rules.
So then they had to file for their removal within that 30-day time period.
DR. TAITZ: Okay. On —
THE COURT: So then your argument is it ought to go back to state court and let them finish what they’re going to do, and then after that point —
DR. TAITZ: Exactly.
THE COURT: — they can add on their parties —
DR. TAITZ: And —
THE COURT: — but, but if the 30 days have expired at that time, how can they remove at that time?
DR. TAITZ: That’s a good question, Your Honor. They waited only five days. You know, if they —
[NBC: Orly is ignoring the question…]
THE COURT: But are you going to answer my question?
DR. TAITZ: Yes, absolutely, Your Honor.
THE COURT: So then would you please answer my question.
DR. TAITZ: Yes.
[NBC: ROTFL, Orly is searching for an argument…]
THE COURT: Then will they be at that point prejudiced under that 30-day rule?
DR. TAITZ: Your Honor, I would stipulate that they waited only five days, and I would stipulate that if Your Honor sends the case back to the Supreme Court of Mississippi and — within 25 days, I would, I would serve — from the time that the Supreme Court of Mississippi gets the case, I can serve the other defendants with summons so that the service is complete and the other parties can express their desire, what they want to do, whether they want to join them in federal court or whether they want to have it heard in the state court, and I would, I would stipulate to 25 days that, you know, you can — Your Honor, I would agree for the case to be remanded to the state court, and I would ask for summons and serve them within 25 days, and within those 25 days they would be able to get an answer from all the other parties.
But this is extremely important for the other parties —
THE COURT: So then, so then are you familiar with the case of Getty Oil in this circuit?
DR. TAITZ: No, I’m not, Your Honor.
THE COURT: The case of Getty Oil talks about the time period in which a defendant has to effectuate removal. And under that jurisprudence the time period of 30 days we’re talking about begins to run from the date that the first defendant is served properly. So if, then, we assume, then, that these defendants have been sued — been served properly —
DR. TAITZ: On the 19th.
THE COURT: — the 30 days began to run from the time they were served.
DR. TAITZ: April 19th.
THE COURT: The first one. And so if the, if the removal is not effectuated within that 30 days, they cannot remove. So then a removing defendant who is first served starts the clock for everybody else. So the clock started to run when they got served.
DR. TAITZ: Five days earlier, Your Honor. That’s — they admitted that they were served on April 19th, so there was only five days, and —
THE COURT: I don’t think you understand the point I’m making. They have 30 days to effectuate removal.
DR. TAITZ: Yes, I understand.
[NBC: No she does not.]
THE COURT: Thirty days started to run when they were served.
DR. TAITZ: I understand.
THE COURT: So, then, if they had not effectuated service within 30 days, they would have been precluded from doing so.
DR. TAITZ: Okay. Your Honor, if that is the case, then they still could have given time for the Supreme Court to decide and for me to serve other parties with summons.
[NBC: Quite a novel ‘theory’]
THE COURT: Okay. Let me go back, then.
DR. TAITZ: There was no good faith in their —
THE COURT: Let me go back to another point. Who filed the amended complaint here?
[NBC: The Court patiently walks Orly through why she failed.]
DR. TAITZ: I did.
THE COURT: Who added RICO federal claims? You did.
DR. TAITZ: Yeah.
THE COURT: Who chose the time period when you did it? You did. Those are all your decisions.
DR. TAITZ: But, Your Honor, when there is no judge —
THE COURT: No. No. You filed your complaint, did you not?
DR. TAITZ: Yes.
THE COURT: And you chose the time period when you wanted to do it?
DR. TAITZ: What do you mean, chose the time period?
THE COURT: Well, I mean you’re the one who filed the first amended complaint. You had an original complaint that only named two parties, and then you wanted to file the amended complaint to add.
DR. TAITZ: Your Honor, it’s not that I chose it. There are specific statutes whereby — the reason the amended complaint was filed mainly because the primary election was over.
THE COURT: Okay. I understand all that. But I’m just simply saying that you filed your amended complaint, and in your amended complaint you added the RICO claim.
DR. TAITZ: Yes.
THE COURT: Okay. Now, do you have any other arguments as to why this lawsuit that now has a federal claim in it should be sent back to state court other than what you’ve already argued? Do you have anything different that you want to argue?
DR. TAITZ: No. Just I’m stating that —
THE COURT: Is it the same argument?
DR. TAITZ: — that if there is — if you accept excuse —
THE COURT: Is it the same argument?
DR. TAITZ: Yes.
THE COURT: Okay. Then thank you very much.
[NBC: Ever so polite :-)]
DR. TAITZ: Your Honor, can I submit the docket of the Supreme Court?
THE COURT: Show it to them, please.
MR. TEPPER: Your Honor, this is Scott Tepper. May I be heard for a moment on a couple of issues?
THE COURT: Just a moment, please. Counsel, do you have any objection to this being made a part of the record?
MR. MATHENY: No, Your Honor. I believe that the entire state court record has already been filed.
MR. TEPPER: No objection, Your Honor.
MR. MATHENY: Docket No. 6 and 7. But no objection to this as an exhibit to the hearing.
THE COURT: Okay. Then she’ll take it from you. All right. Thank you, ma’am. On the telephone. Counsel?
MR. TEPPER: Thank you, Your Honor.
THE COURT: Short rebuttal.
MR. TEPPER: A couple of quick points.
Docket No. 19-1 is an order of the Mississippi Supreme Court that we lodged which indicates that the Mississippi Supreme Court deferred to the removal notice, and I think that’s important.
But I think what’s most important is that Ms. Taitz has misrepresented both Mississippi law and the law of the Fifth Circuit on precisely the point she was arguing. And this was discussed in the Docket No. 13, which was the filing by the Secretary of State at Page 4, paragraphs 11 and 12. They argue that the Mississippi Supreme Court’s involvement in the case is irrelevant because at most all Ms. Taitz was doing was taking an interlocutory appeal. And under Mississippi Rule of Appellate Procedure 5F, quote, the petition for appeal shall not stay proceedings in the trial court unless the trial court or the Supreme Court shall so order, unquote.
There was no order staying the case in the state court and the case that was pending in the Hinds County Circuit Court was alive, it just didn’t have a judge, but it certainly had a clerk who could issue a summons.
Second, as the Secretary of State pointed out, Fifth Circuit jurisprudence is to the effect that you can remove, you can remove an action whether it’s pending in a state trial court or an appellate court. They cited a matter of 5300 Memorial Investors, Ltd., 973 F.2d 1160.
There are a number of other cases, including one from this court, Moore versus Interstate Fire Insurance Company, 717 F.Supp. 1193 and 1195, a 1989 case which says that the federal court acquires full and exclusive jurisdiction over the case as though it had been originally commenced in the federal court.
And whether the case is pending in a state court, a trial court or an appellate court, as Your Honor pointed out makes no difference. But the law of the Fifth Circuit and Mississippi’s appellate rules both make it very clear that Ms. Taitz has ignored the law, essentially. Thank you, Your Honor.
THE COURT: All right. Any rebuttal over here from counsel here?
MR. MATHENY: Your Honor, I believe Mr. Tepper made the points I was going to make. I will of course answer any questions Your Honor might have. But I have nothing to add to what Mr. Tepper said.
THE COURT: All right, Mr. Begley? MR. BEGLEY: No, Your Honor.
THE COURT: Okay. Is this going to be a new argument now or are you just going say the same thing?
DR. TAITZ: Well, my concern is that what the argument– the argument that Mr. Tepper just brought is a new argument that was not in the pleadings, and I — if —
THE COURT: No, it’s in the pleadings.
[NBC: Oops, the Judge has read the pleadings and Orly apparently has not?]
DR. TAITZ: The cases that she brought —
THE COURT: Hold it. His argument is in the pleading, though. I read this in the pleading.
DR. TAITZ: I will check. But I would also ask in the future — I mean this is — this has to be equal protection. What Mr. Tepper is doing here, he’s sitting in his office, he has his law firm with him, they are doing the research, and they’re spitting out cases and they’re spitting out arguments, and I’m at disadvantage. And if this case is not remanded to state court, I would ask to allow equal protection to both sides and not allow Mr. Tepper to participate on the phone because it happened — it creates an unequal situation.
He is sitting there. He is getting all the information that he is spitting out. I don’t have my Internet access here, and this is really prejudicial against the plaintiffs who are pro se plaintiffs who are trying to uphold the law.
So in the future, I would — if, again, if the case is not remanded to the state court, I would vehemently object to allowing Mr. Tepper to participate in, in this case on the phone.
I made a trip from the state of California on my own dime to show you the respect in being in this courtroom. Mr. Tepper has no excuse in not being here. He’s paid well by the Democratic Party, my guess, and he can be here and argue based on what’s in the case and not what is — he is researching while we are speaking.
MR. BEGLEY: Your Honor, Mr. Tepper had a medical excuse, and Mr. Tepper is representing the party pro se.
THE COURT: Okay. Anything further? Perhaps you didn’t read all the briefs, but these arguments were made in the briefs. So perhaps you missed it. But this argument that 5F does not allow — does not state a proceeding is clearly within the response that was submitted by the defense.
And then the other point that removal can occur from any state court is clearly within their responses. In fact, that plus other points — all these cases are in the briefs.
If you missed them, then say you missed them, but don’t say they weren’t in the there because — do you have your briefs over there?
DR. TAITZ: Yes, I do.
THE COURT: Do you have those briefs from their side over there? Do you have your briefs?
DR. TAITZ: I’m not sure if I have everything with me right here right now. I have many of them.
THE COURT: Okay. Well, if you look through there you’re going to see that these arguments were are made. So I am baffled by your comment about you were saying that this is a brand new argument. This is nothing new. So they made this argument, they cited cases in support, and I asked you here what’s your response to these same arguments, and I’m still waiting on a response. You don’t have one.
DR. TAITZ: I have provided my response.
THE COURT: Okay. I’ll take that response, then. Thank you very — because you’re not saying anything new, and you’re not providing me any case authority or any statutory authority like the other side did. All you’re doing is repeating something which is not founded in the law.
And I’m constantly asking you, what is your authority? You don’t have any other than the inference you would like for me to draw from 1331 and the inference you want me to draw from removal and the inference you want me to draw from your arguments involving a court’s loss of jurisdiction upon an appeal.
But your appeal’s interlocutory. It’s governed by Mississippi rules. And they have pointed that out in briefs, and you have not responded to that.
DR. TAITZ: Your Honor, I have —
THE COURT: Do you wish to respond to it now or you just want to repeat an argument?
DR. TAITZ: No. I wanted just to make sure —
THE COURT: No? Do you want to respond to what the Rule 5F says? it?
DR. TAITZ: No.
THE COURT: Okay. Do you know 5F? Have you ever read it?
DR. TAITZ: I don’t recall.
[NBC: ROTFL… The Judge clearly has come to understand Orly…]
THE COURT: Okay. This case I mentioned to you earlier on Getty Oil, have you read it? It’s a Fifth Circuit case.
DR. TAITZ: I don’t recall.
[NBC: The shock… Why should Orly be familiar with precedential rulings in the District…]
THE COURT: Okay.
DR. TAITZ: You have mentioned the case right now.
THE COURT: Okay. Cases involving removal from any state court. Did you read any of those cases?
DR. TAITZ: I did.
THE COURT: So which case can you cite, then, that would contradict that — those cases? argument
DR. TAITZ: Your Honor, I would not provide any more on this issue. I wanted to make two short points.
[NBC: Called her bluff again…]
THE COURT: Do they concern removal and remand?
DR. TAITZ: Yes.
THE COURT: Okay. What’s your point?
DR. TAITZ: If — one of my points is if Your Honor decides not to remand the case to state court, I would ask for a sufficient period of time to issue summons from this court, from federal court, and serve the other defendants —
THE COURT: Okay. I’ll take that up in just a moment. All right. What’s your second point? To issue summons. All right. What else?
DR. TAITZ: From this court so that the other parties can provide an answer.
THE COURT: All right. And your second point you said you wanted to make?
DR. TAITZ: Your Honor, in the notice for this hearing there was a statement that the court will hear two motions that were brought by me. And I believe that in the interest of the national security and urgency of the matter, I am asking the court to hear those two motions that are on the docket.
THE COURT: These are the motions I’m hearing now.
DR. TAITZ: No. No. If you look on the docket, Your Honor, there are two motions. One where I asked for evidentiary hearing on one issue. The defendants submitted —
THE COURT: Okay. I will take that up after I have ruled on the motion to remand. The court needs to take each matter separately. And so I’ll start with the motion to remand and then after the court has ruled on that, then we will discuss any further proceedings in the court. All right, then.
Now, what I have before me is this motion to remand, and this motion challenges this court’s jurisdiction to receive testimony and to proceed to further hearings as well as a trial, if we come to that.
But presently, the matters before the court only address the court’s subject matter jurisdiction.
Now, the parties certainly should understand that this is federal court, not state court. And federal court are courts of limited jurisdiction. We don’t have the broad, general jurisdiction afforded geographically by state courts, but, instead, our jurisdiction is limited by statutory confinement. We have jurisdiction in cases of diversity of citizenship under Section 1332, 28, USC. That case involves lawsuits in — featuring plaintiffs and defendants of diverse citizenship and also an amount in controversy exceeding $75,000, exclusive of interest and costs.
The removing defendants did not caption their removal under Section 1332. Instead, they removed under Section 1331. 1331 has been deemed federal question subject matter jurisdiction. And in essence what it says is that once a lawsuit takes on a federal character, then a defendant in that action can seek the jurisdiction of the federal court.
So then the question, then, when the removing defendants filed their papers, first of all, did this lawsuit take on a federal character?
When initially this lawsuit was filed in the state court it had no federal claims; therefore, that case was not removable to this court and that lawsuit at that time was simply a state law lawsuit.
But then the plaintiff decided to amend her complaint. She added defendants. She also added a federal claim. The federal claim was under RICO. That is a federal enactment.
[NBC: So Orly is the cause of why the defendants go to remove the case to Federal Court. I wonder if Orly even had considered this…]
She noticed it in her pleadings, stated it, and once that claim was included in this lawsuit, it then provided a federal character to the lawsuit.
The defendants, then, sought to remove that matter from state court to federal court, which under the law would be their right when defendants are faced with a federal claim.
So the first consideration is whether when the defendant sought removal here did they do so timely?
The law is quite clear on that. A defendant has 30 days from the inculcation of a federal matter or change in character of the lawsuit from state to federal to effectuate removal. They have 30 days. The 30 days begins to run when the first defendant is served.
So since these two defendants over here deemed themselves served, they then immediately filed a petition of removal. That petition of removal is, is virtually automatic at that stage, because what it says is that this lawsuit is now federal in character, that the defendants have elected to move that lawsuit to federal court.
So then they filed that. They filed that with the clerk’s office.
The judge of the state court doesn’t have any involvement in that involvement removal process. The judge is not allowed a right to object. The state court judge doesn’t have to sign any pleadings.
Once the defendants file a petition for removal, that petition is filed in the state court clerk’s office.
Once it is filed, a copy is sent to federal court, to the clerk’s office, and then the file is sent from the clerk of the state court to the clerk of the federal court.
The state court judge is not involved in that process.
And so then it comes to the federal court.
Once that case arrives in the federal court, the plaintiff at that point can attack the removal process. The plaintiff can say, it should not have been removed. There are some procedural errors or some substantive errors which could preclude removal.
The defendant who seeks subject matter jurisdiction in federal court has the burden of proof.
So the plaintiff does not have the burden to show that the matter does not — should not remain in federal court. The defendants have to show that the lawsuit is rightfully in federal court. So defense has the burden here.
The plaintiff, then, can pick holes in the removal process or the grounds for removal and the defendants are tasked with responding, and the defendants have the burden of proof.
So, then, here plaintiff said that the case should not be removed from federal court because at the time of removal that this case was pending in the Mississippi Supreme Court.
Rule 5F of the state court rules does not help the plaintiff because it does not divest — because an interlocutory appeal, that is, an appeal before the case is concluded but an appeal on one aspect of the case, not only merits of the case, does not divest the state court of jurisdiction.
So the case was not entirely before the Mississippi Supreme Court so as to say, first of all, that that case is no longer an active case and everything has been stayed in the lower courts. That rule does not say that.
But even if the rule had said that, the law says that a case can be removed from any state court once that court takes on a federal character.
So this case took on a federal character when the plaintiff added RICO.
Next question: Plaintiff, then, in her argument seems to suggest that that’s some sort of time infraction.
Once the case takes on a federal character, the defendants have 30 days in which to effectuate removal. Thirty days.
So they chose to move the matter within five. That’s their choice.
Next matter: That it will be a procedural irregularity and perhaps a procedural deficit if the case is removed without the concurrence of all, quote/unquote, properly served defendants.
So if there had been three defendants properly served, two who wanted to remove, but a third who did not join in the removal, then that would be a procedural defect.
Two defendants have been served here, and only those two sought removal. So at this juncture, I have two defendants who have sought removal, but I do not have any other defendants before the court.
Plaintiff says that they were — that she could not have served them. Well, I’ve already dealt with that. The clerk’s office was open. She could have still sought to serve them. Rule 5F of the state court did not preclude her from seeking to serve any of the defendants before removal occurred. And so she did not. And then her efforts to serve them by sending them something through the mail did not comport with Rule 4 of the Mississippi Rule for service of process.
So at this juncture, the court has before it only, only two properly served defendants. Therefore, the court does not have to have the concurrence of any other defendant because they have not been properly served.
Counsel acknowledges that they are not properly served, but she says that she could not do so because no judge was appointed. But yet counsel cannot discuss meaningfully with this court the impact of Rule 5F of the state rules which undermine her whole argument.
So, then, this lawsuit was imbued with federal character when plaintiff added RICO claims. Two, the defendants removed within the time frame that they were allowed to do so because this lawsuit had a federal claim.
Next, the other defendants, they had not been properly served, so they did not have to join in because they are still not before this court. I only have two properly served defendants at issue before this court.
Her attempts to serve those defendants by certified mail receipt does not meet the standards of Rule 4 in the federal — I mean in the federal rules — I mean state court rules. Does not meet it.
So this court, on the arguments that it has here in front of it, is not persuaded to remand this matter. Instead, since this lawsuit has taken on a federal character by the plaintiffs’ choice to add a federal cause of action, then this court, as one court has said, has a, quote/unquote, unflagging obligation to allow litigation to proceed in the choice of the defendants, which is a federal forum based upon that particular cause of action.
So because of all of that and more, because I have gone through the papers, and I am going to write a, well, a lengthier opinion on this matter, this court denies the motion to remand.
[NBC: It will only get better :-)]
There are some other matters that might be construed along with this that didn’t — weren’t argued, but the court is going to deny the motion to remand.
And let me reiterate, again, that plaintiffs’ upset, saying that the defendants have submitted new arguments is simply not correct.
These arguments submitted here are all in the briefs. The court has read these arguments as well as all of hers, and so her statement that these were not in the brief is simply incorrect. Perhaps she read — overread them or perhaps forgot them, but they are clearly in the briefs.
Now, that is the motion of the court on the motion to remand.
Now, so the court has denied remand.
Having denied remand, now this court moves to the next matter.