United States District Court, E.D. North Carolina, Western Division
JAMES C. FOX, Senior District Judge.
This matter is before the court on the Memorandum and Recommendation [DE-13] ("M&R") issued by United States Magistrate Judge James E. Gates. Therein, Judge Gates recommends that this action be remanded to the Wake County District Court pursuant to 28 U.S.C. § 1447(c), and that pending motions in this action be dismissed as moot.For the reasons stated below, the court accepts the recommendation set forth in the M&R, and ORDERS that this case be remanded to the Wake County District Court, and that all pending motions are denied as moot.
This action was opened in this court when Defendant filed a Notice of Removal [DE-1] of a juvenile action (Case No. 07JT705) filed against him by Wake County Human Services ("WCHS") on May 26, 2009 in the North Carolina General Court of Justice, District Court Division, Wake County (hereinafter, the "Wake County District Court"). Consistent with the practice in this district, the case was designated as a miscellaneous case because Defendant neither filed a filing fee nor filed a motion for leave to proceed in forma pauperis. The miscellaneous case was assigned to Judge Gates.
A few weeks after Defendant filed the Notice of Removal, he filed a Motion for Leave to Proceed in forma pauperis [DE-4]. Defendant also filed a series of motions [DE-5; DE-6; DE-7; DE-8; DE-9; DE-10] over the next several months. Subsequently, the Clerk of Court issued a Reassignment Order [DE-12], stating that because Defendant had filed a motion to proceed in forma pauperis, the case was converted to a civil case, and assigned to a district judge. The case was randomly reassigned to the undersigned, and Judge Gates remained the assigned magistrate judge. See January 6, 2014, Order [DE-12].
Judge Gates then issued an Order and M&R [DE-13] which was filed on January 13, 2014, allowing Defendant's Motion for Leave to Proceed in forma pauperis [DE-4], but recommending, after conducting a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), that the action be remanded to state court. Judge Gates recounted Davis' history of frivolous and vexatious filings in this court, the District Court for the Eastern District of Virginia, and the courts of the State of North Carolina, and opined that the current action could be subject to dismissal as malicious. M&R [DE-13] pp. 2-5, 7. Judge Gates did not reach the issue, however, instead recommending that this action be remanded because the court lacks subject matter jurisdiction over this case. !d. p. 7.
Specifically, Judge Gates observed that "[a] requirement for removal of a case from state court is that the federal district court have original jurisdiction over the case, " and that" [a] case that is improperly removed is subject to remand to the state court from which it came." !d. p. 7 (citing those proceedings directly relate to the matter pending before the federal court). 28 U.S.C. § 1441(a) and§ 1447(c)). Judge Gates then found that the application of the domestic relations abstention doctrine, see Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980), precludes this court from having subject matter jurisdiction over this action-a state juvenile proceeding. M&R [DE-13] pp. 7-8.
The filing of the M&R set off a flurry of activity by Defendant, consistent with his history of vexatious filing in this court and others. In an order filed on January 27, 2014 [DE-21], the court denied Defendant's various "appeals" but allowed his motion for an extension of time to file an objection to the M&R, and set February 13, 2014 as the deadline for doing so. Defendant responded by filing his objection [DE-22]; a memorandum in support of his objection [DE-23]; a motion pursuant to Rule 58 [DE-24]; a motion pursuant to Rule 59 [DE-25]; another notice of appeal to undersigned [DE-26]; a motion for recusal as to Judge Gates [DE-27]; another objection [DE-28], and two more notices of appeal directed to the Fourth Circuit Court of Appeals [DE-30; DE-32].
II. JURISDICTION TO CONSIDER M&R AND PENDING MOTIONS
Before reaching the M&R and Defendant's various pending motions, the court first addresses the impact, if any, of Defendant's filing of a notice of appeal [DE-30] directed to the Fourth Circuit. Generally, the filing of a notice of appeal "confers jurisdiction on the courts of appeals and divests the district court of control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (citation omitted). There are exceptions to this general rule, however, and it is well-settled that a "district court does not lose jurisdiction when the litigant takes an appeal from an unappealable order." United States v. Jones, 367 F.Appx. 482, 484 (4th Cir. 2010) (citing Griggs, 459 U.S. at 58); see also United States v. Rodgers, 101 F.3d 247, 251-52 (2d Cir. 1996); Ruby v. Secretary of United States Navy, 365 F.2d 385, 389 (9th Cir. 1966); Woods v. Attorney General of Maryland, Civil Action No. WDQ-12-1260, 2012 WL 6042834, at *2 (D. Md. Dec. 3, 2012) (ruling on the petitioner's habeas corpus petition even though petitioner had appealed court's earlier denial of motion to recuse because an "order denying recusal is not an appealable interlocutory or collateral order").
Here, Defendant's first notice of appeal directed to the Fourth Circuit [DE-30] indicates he is appealing this court's order filed on January 27, 2014 [DE-21]. Again, that order denied Defendant's various "appeals" and also allowed his motion for extension of time. With regard to the appeals, the court found no error in an reassignment order [DE-12] issued by the Clerk of Court converting the action to a civil case and assigning to the undersigned. The court also found that there was no basis for the undersigned to recuse. The second notice of appeal [DE-32] states that Defendant is appealing "all Orders, Memorandums [sic] and Opinions. In re 5:14-cv-0004-F including the 01/27/2014 Order."
The January 27, 2014, Order [DE-21] is not a "final decision." See 28 U.S.C. § 1291. Nor is it an "appealable interlocutory or collateral order." See United States v. Parker, 428 F.Appx. 260 (4th Cir. 2011) (per curiam) (explaining that an appeal from a district court order denying a motion to recuse or disqualify was not an "appealable" order); see also 28 U.S.C. § 1292. Nor is any other order preceding the instant one. Accordingly, because Defendant "has taken an appeal from an unappealable order, " this court is not divested of jurisdiction over this action. Jones, 267 F.Appx. at 484.
A district court may "designate a magistrate judge to submit... proposed findings of fact and recommendations for the disposition of a variety of motions." 28 U.S.C. § 636(b)(l)(B). The court then must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Upon review of the record, "the court may accept, ...