United States District Court, W.D. Washington, Seattle
L. ROBART UNITED STATES DISTRICT JUDGE.
the court is a motion from Petitioner Heather Winslow Barr
that the court construes as a motion to remand and enter a
vexatious litigant order against Respondent Joseph Stanley
Pigott. (Mot. (Dkt. # 7).) Mr. Pigott did not file an
opposition to the motion. (See generally Dkt.)
Having considered Ms. Barr's submission, the appropriate
portions of the record, and the relevant law, the court
GRANTS in part and DENIES in part Ms. Barr's
September 25, 2019, Mr. Pigott filed a notice of removal in
this court, attaching a petition for divorce that was filed
by Ms. Barr in 2017 in King County Superior Court.
(See Not. of Removal (Dkt. ## 1-2, 4); Divorce Pet.
(Dkt. ## 1-3, 1-4, 4-1, 4-2.) This is the second time in four
months that Mr. Pigott has attempted to remove Ms. Barr's
divorce petition to the Western District of Washington.
See Barr v. Pigott, No. C19-0682RSM (W.D. Wash.),
Dkt. ## 1, 1-2. In the first case, the court issued an order
to show cause why the action should not be remanded for lack
of subject matter jurisdiction. See Id. Dkt. # 15.
Ms. Barr responded to the court's order to show cause
with a motion to remand for lack of subject matter
jurisdiction. See Id. Dkt. # 17. The court granted
Ms. Barr's motion, remanded the petition for divorce back
to King County Superior Court, and awarded Ms. Barr fees and
costs under 28 U.S.C. § 1447(c) after finding that
“[Mr. Pigott] removed this case without any
comprehensible basis in law and has not substantively
defended the decision to do so.” See Id. Dkt.
same problems that plagued Mr. Pigott's first attempt at
removal are present here, too. As the court has already
concluded once before, Mr. Pigott has not articulated a basis
for this court's subject matter jurisdiction over Ms.
Barr's divorce petition. See id. Mr.
Pigott claims that the court has original jurisdiction over
this case because it arises under “a Treaty of Morocco
and the United States of America, Commonly known as the
Moorish American Treaty of Peace & Friendship of 1787 and
the United States Constitution of 1789.” (Not. of
Removal at 1-2.) Despite this allegation, the state court
pleading that Mr. Pigott attempts to remove is a divorce
petition that does not appear to raise federal questions.
(See id.; Divorce Pet.); see also Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987)
(“[F]ederal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” (citing Gully v. First
Nat'l Bank, 299 U.S. 109, 112-13 (1936)). Moreover,
Mr. Pigott had an opportunity to respond to Ms. Barr's
motion to remand but chose not to do so (see
generally Dkt.), which the court construes as an
admission that Ms. Barr's motion has merit, see
Local Rules W.D. Wash. LCR 7(b)(2) (“[I]f a party fails
to file papers in opposition to a motion, such failure may be
considered by the court as an admission that the motion has
merit.”). Thus, the court finds that it lacks subject
matter jurisdiction over this case and concludes that remand
Barr also requests that this court “impose
terms.” (Mot. at 1.) In an order remanding a case, the
court “may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of
the removal.” 28 U.S.C. § 1447(c). “Absent
unusual circumstances, courts may award attorney's fees
under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal.”
Martin v. Franklin Capital Corp., 546 U.S. 132
(2005). In exercising its discretion to award fees under
§ 1447(c), the court must consider “the desire to
deter removals sought for the purpose of prolonging
litigation and imposing costs on the opposing party, while
not undermining Congress' basic decision to afford
defendants a right to remove as a general matter, when the
statutory criteria are satisfied.” See id.
the case the last time Mr. Pigott frivolously removed this
case, the court finds an award of costs against Mr. Pigott
for Ms. Barr's expenses in removing this action to be a
necessary or just result under § 1447(c). See Barr
v. Pigott, No. C19-0682RSM, Dkt. # 28. Mr. Pigott
removed this case for the second time in four months without
any comprehensible basis in law and has not substantively
defended the decision to do so. Moreover, given that the
court has already remanded this action once, the court finds
that Mr. Pigott's removal was done in bad faith.
Accordingly, Mr. Pigott shall pay to Ms. Barr the costs
associated with defending this action in this court.
Barr also asks the court to enter a vexatious litigant order
against Mr. Pigott that requires that he “obtain prior
approval before filing any additional removal actions.”
(See Mot. at 10.) The All Writs Acts, 28 U.S.C.
§ 1651(a), provides district courts with the inherent
power to enter pre-filing orders against vexatious litigants.
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047,
1057 (9th Cir. 2007). Although the court agrees with Ms. Barr
that Mr. Pigott's actions appear to be part of a
“malicious scheme . . . to impede the efficient
operation of the state court system” (Mot. at 9-10),
the court is not willing to enter a vexatious litigant order
against Mr. Pigott at this time. Vexatious litigant orders
should be rare and generally require a finding that a
litigant engaged in “[f]lagrant abuse of the judicial
process.” See De Long v. Hennessey, 912 F.2d
1144, 1148 (9th Cir. 1990). Mr. Pigott's conduct in twice
removing the same divorce petition is on the verge of
crossing that threshold, and the court warns Mr. Pigott that
he should not try to remove this matter a third time. But on
this record, the court concludes that a vexatious litigant
order is not warranted.
reasons set forth above, Ms. Barr's motion to remand and
enter a vexatious litigant order against Respondent Joseph
Stanley Pigott (Dkt. # 7) is GRANTED in part and DENIED in
part. This case is REMANDED to the Superior Court of
Washington in and for King County. The court also ORDERS that
Ms. Barr is entitled to fees and costs under 28 U.S.C. §
1447(c). No. later than fourteen (14) days from the filing
date of this order, Ms. Barr may file a supplemental motion
for attorney's fees, limited to six (6) pages, and
supported by documentary evidence reflecting the amount of
reasonable fees and costs Ms. Barr seeks. Within seven (7)
days of the filing date of Ms. Barr's motion, Mr. Pigott
may file a response addressing only the reasonableness of the
fees and costs requested. The response is also limited to six
(6) pages. No. reply is permitted. Finally, Ms. Barr's
request for entry of a vexatious litigant order is DENIED.
court DIRECTS the Clerk to close this case and to assign any
future notices of removal of Ms. Barr's divorce petition