United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
18-181-PHX-JAT was removed to federal court in January 2018.
Based on this Court's review of the file, this Court has
concluded that the case was not removable for various
reasons, including that resident Defendants removed and that
service had occurred more than 30 days before removal.
However, the Plaintiff in CV 18-181 did not move to remand,
and this Court cannot remand for procedural defects in
removal sua sponte. Thus, this case proceeded in
fact that this case was not removable has led to numerous
problems in administration. The first such problem being the
state court never quit presiding over the removed case,
culminating in the state court entering judgment in favor of
the Plaintiff and against the Defendant in June 2018 (six
months after removal). (Doc. 42 at 1-2). The Court is
doubtful that this judgment is enforceable, but that is an
issue for the state courts to decide.
next problem is that, were this Court to enter a judgment in
CV 18-181, there would then be two, duplicative judgments.
Generally, a plaintiff cannot receive a double recovery for
the same injury and second enforceable judgment could lead to
this impermissible result.
third problem that arises from the removal of a non-removable
case, is that the state court case, pre-removal, had
proceeded to state court mandated compulsory arbitration and
the arbitrator had entered an award in favor of Wheaton Van
Lines and against Plaintiff. This Court has no comparable
compulsory arbitration system for cases under a certain
dollar amount. This Court is unclear whether such an award
should be honored by this Court because this issue would
never arise in a case that was removed within 30 days of
this Court seriously questions whether it has subject matter
jurisdiction in this case. This Court raised this issue in
its Order of June 12, 2018 (Doc. 38 at 13). However, Wheaton
Van Lines neither moved to remand, nor affirmatively made any
claim that this Court has subject matter jurisdiction over
this case. This Court is confused as to why Wheaton Van Line,
the prevailing party in state court, is not diligently
pursuing this issue because if this Court were to enter
judgment in its favor, such judgment would be unenforceable
if this Court was without jurisdiction to enter it.
point, the Court has concluded it cannot, on this record,
resolve CV 18-181. However, CV 17-3967 has reached a
conclusion. Thus, the Court will unconsolidate these
cases, and enter judgment in favor of Defendant and against
Plaintiffs for the reasons stated in this Court's order
of June 12, 2018 (Doc. 38) in CV 17-3967. As to CV 18-181,
the Court will hold a status conference to address the
following issues: 1) the basis for this Court's subject
matter jurisdiction; 2) assuming subject matter jurisdiction
exists, whether this Court can enter a judgment that is
duplicative of the state court judgment; and 3) assuming 1
and 2 are satisfied, whether this Court can adopt the award
of the state court arbitrator.
IT IS ORDERED unconsolidating CV 17-3967 and CV 18-181. CV
18-181 shall remain open and pending before the undersigned.
In CV 17-3967 the Clerk of the Court shall enter judgment in
favor of Defendant and against Plaintiffs for the reasons
stated in this Court's Order of June 12, 2018 (Doc. 38).
The Clerk of the Court shall file a copy of this Order in
both CV 17-3967 and CV 18-181; all future filings dealing
with CV 18-181 shall be filed in that case number only.
FURTHER ORDERED that the show cause hearing set for July 11,
2018 at 3:00 p.m. is converted to a status conference in CV
18-181 only. In preparation for this status conference, each
side shall file a brief addressing the three issues
identified above by July 9, 2018.
 See Kelton Arms Condominium Owners
Ass'n v. Homestead Ins. Co., 346 F.3d 1190, 1193
(9th Cir. 2003).
 The state court case was filed in
2016; thus at the time of removal it had almost reached the
point of judgment because it had been proceeding in state
court well over a year.
 The Court notes that the Jacobs have
filed a notice of interlocutory appeal of this Court's
Order of June 12, 2018. Generally, filing a notice of appeal
divests this Court of jurisdiction as to the merits of the
case. See generally Ruby v. Sec. of the U.S. Navy,
365 F.2d 385 (9 Cir. 1966)(en banc). However, this general
rule is overcome if a party appeals a clearly non-appealable
order. Id. at 388-389; Hoffman for and onBehalf of N.L.R.B. v. Beer Drivers & Salesmen's
Local 888, 536 F.2d 1268, 1272-73 (9 Cir. 1976)
(“...an appeal from a nonappealable order does not
deprive a district court of jurisdiction.”). In this
case, the Jacobs have appealed a nonappealable order, seemly
purely for obstructionist purposes to stop a judgment from
entering against them. (Similarly the Jacobs removed the
non-removable CV 18-181 only after an arbitrator entered an
award against them; again, seemly ...