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Bowers v. City of Helena-West Helena

September 27, 2007

ANDREW BOWERS PLAINTIFF
v.
CITY OF HELENA-WEST HELENA; AND MARY LOESCHNER, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF HELENA-WEST HELENA DEFENDANTS



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER TO REMAND

Pending is Plaintiff's Motion for Remand of this case to state court. (Docket # 7). Defendant has responded. Plaintiff's motion to remand is granted for the reasons set forth below.

"In reviewing a motion to remand, the district court must strictly construe the removal statute against the party seeking removal and resolve all doubts as to the propriety of federal jurisdiction in favor of state court jurisdiction." Masepohl v. American Tobacco Co., Inc., 974 F. Supp. 1245, 1249 (D. Minn. 1997) (citing In re Potash Antitrust Litig., 866 F. Supp. 406, 410 (D. Minn. 1994)); in accord Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S. Ct 868, 872 (1941). A heavy burden of proof is on the party contesting a remand motion. 14A Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction 2d § 3739 (1994).

After careful review of the record and briefs of the parties on this issue, the Court finds that federal jurisdiction does not exist in this case. There is no dispute that diversity does not exist. Plaintiff specifically states that he is bringing state law causes of action for false imprisonment, abuse of process and malicious prosecution. Accordingly, at this time, the case does not arise under the Constitution or laws of the United States; nor is it dependent on the construction of a federal statute or the federal Constitution.*fn1 The Defendant has not met its burden of proof.

Plaintiff's motion for remand (Docket # 7) is granted. The Clerk is ordered to send a certified copy of this Order to the Circuit Court of Phillips County and to remand this case forthwith.

IT IS SO ORDERED this 27th day of ...


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