United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
matter comes on for consideration of defendant Vera D.
Evans's notice of removal (Dkt. # 2), and motion for
leave to proceed in forma pauperis (Dkt. # 3).
Plaintiff Arvest Bank originally brought this action in the
District Court of Tulsa County, Oklahoma. Dkt. # 2, at 32-36.
Plaintiff's petition asserts claims (1) against Evans for
default of a note in the sum of $5, 768.25, plus interest
thereon from May 23, 2018 at a daily rate of $1.02, plus
attorney fees and costs, and (2) against all defendants for
foreclosure of a mortgage that was granted by Evans to
plaintiff as collateral securing the note. Id. at
35. Arvest moved for summary judgment. Id. at 19. On
October 4, 2018, Tulsa County District Court Judge Daman
Cantrell granted Arvest's motion, and entered summary
judgment against all defendants. Id. at 21.
reliance upon the representations and information set forth
in defendant's motion for leave to proceed in forma
pauperis and supporting affidavit, the Court finds that
defendant Evans's motion should be granted. However, for
the reasons discussed below, the Court finds that the action
should be remanded to the District Court for Tulsa County.
removed this action on the basis of diversity jurisdiction
under 28 U.S.C. § 1332. Id. at 10. Under §
1332(a), a federal district court possesses original
subject-matter jurisdiction over a case where the parties are
diverse in citizenship and the amount in controversy exceeds
$75, 000. In addition to the requirements of original
jurisdiction, 28 U.S.C. § 1441(b)(2) lays out the
“forum-defendant rule, ” which provides that a
case may not be removed on the basis of diversity
jurisdiction if any defendant is a citizen of the state in
which the state-court action was brought. As the party
removing the case to federal court, defendant bears the
burden of establishing diversity jurisdiction by a
preponderance of the evidence. Dutcher v. Matheson,
733 F.3d 980, 985 (10th Cir. 2013). Section 1447 requires
that a case be remanded to state court if at any time before
final judgment it appears the court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c).
initial matter, Evans was named as a defendant in the state
court action; however, in the caption of her notice of
removal, Evans names herself as plaintiff. Dkt. # 2, at 1. A
defendant may not unilaterally realign herself as a plaintiff
in the caption of the notice of removal. Green Tree Fin.
Corp. v. Arndt, 72 F.Supp.2d 1278, 1281 (D. Kan. 1999).
Therefore, Evans remains a defendant in the removed
removed this case following a decision of the District Court
in and for Tulsa County, Oklahoma, granting plaintiff's
motion for summary judgment in its entirety on October 4,
2018, and entry of a journal entry of judgment on October 23,
2018. The state court's decision constitutes a final
judgment, and the time for appeal has run. Okla. Sup. Ct. R.
1.21. The Tenth Circuit has not addressed whether removal is
proper after a state court has issued a final judgment.
However, the Second, Fifth, Sixth, Ninth, and Eleventh
Circuits have held that removal is improper and ineffective
to vest jurisdiction in the federal court after a final state
court judgment. Oviedo v. Hallbauer, 655 F.3d 419,
423-24 (5th Cir. 2011) (“Removal is simply not possible
after a final judgment and the time for direct appellate
review has run.”); Ohio v. Doe, 433 F.3d 502,
507 (6th Cir. 2006) (“We agree with the reasoning of
our sister circuits in ruling that when all that remains of
an action is the enforcement of a judgment, removal to
federal court is not authorized.”); Four Keys
Leasing & Maint. Corp. v. Simithis, 849 F.2d 770,
774 (2d Cir. 1988) (“[I]t would be a perversion of the
removal process to allow a litigant who is subject to a final
judgment to remove that final judgment to the federal courts
for further litigation.”); Ristuccia v. Adams,
406 F.2d 1257, 1258 (9th Cir. 1969) (“It would seem
obvious that to remove an action to the federal courts from a
state court, it must first be pending in the state
court.”); Aurora Loan Servs., LLC v. Allen,
No. 18-11569, 2019 WL 625820, at *3 (11th Cir. Feb. 14, 2019)
(“We find the reasoning of our sister circuits
persuasive and hold that, insofar as Allen attempted to
remove the foreclosure action and final judgment, there was
no state-court action pending at the time to remove, inasmuch
as nothing remained for the state courts to do but execute
the judgment.”); see also Wright & Miller,
Federal Practice & Procedure § 3721.1 (Rev. 4th ed.
2019) (“[D]efendants may not remove a case from a state
court to a federal court after the state court has entered a
final judgment that terminates the litigation.”); 32A
Am. Jur. 2d Federal Courts § 1286 (2019) (“[W]hen
all that remains of an action is the enforcement of a
judgment, removal to federal court is not
authorized.”). The Court finds the reasoning of these
circuit courts to be persuasive, and is unable to identify
any compelling reason to hold otherwise. Thus, the Court
finds that a defendant may not collaterally attack a state
court judgment by “removing” the case to this
Court. Accordingly, the Court finds that the present case is
not removable and that remand is necessitated.
IS THEREFORE ORDERED that defendant Vera D.
Evans's motion for leave to proceed in forma
pauperis (Dkt. # 3) is granted.
IS FURTHER ORDERED that this matter is remanded to
the District Court in and for Tulsa County, State of
Oklahoma, No. CJ-2018-2357, for all further proceedings.
 As noted, § 1441(b)(2) precludes
removal where a defendant is a citizen of the state in which
the action was brought. Evans states that she is a citizen of
Oklahoma; therefore, she is a citizen of the state in which
the action was brought. Dkt. # 2, at 10. Evans's presence
in the suit as a “forum defendant” would arguably
prevent removal. However, the Tenth Circuit's position is
that the “forum-defendant rule” is procedural,
not jurisdictional, and, thus, can be waived if no party
urges its application to prevent removal. Am. Oil Co. v.
McMullin, 433 F.2d 1091, 1093 (10th Cir. 1970)
(concluding that the statutory predecessor to §
1441(b)(2) was procedural, not jurisdictional, and therefore
waivable). Because Arvest has not moved to remand based on
§ 1441(b)(2), the Court may not apply § 1441(b)(2)
to block removal.
 Even if defendant were permitted to
remove the action following a final judgment, the Court would
most likely lack subject-matter jurisdiction for other
reasons. A defendant's notice of removal must include a
good-faith, plausible allegation that the amount in
controversy exceeds the jurisdictional threshold. Owens
v. Dart Cherokee Basin Operating Co., 135 S.Ct. 547,
553-54 (2014). In determining whether the amount in
controversy requirement has ben satisfied, courts may rely on
their “judicial experience and common sense[.]”
Roe v. Michelin N.A., Inc., 613 F.3d 1058, 1062
(11th Cir. 2010). In the petition, plaintiff seeks damages in
the amount of $5, 768.25, plus pre-judgment and post-judgment
interest, and reasonable costs and attorney fees. Dkt. # 2,
at 35. In her notice of removal, however, defendant Evans
asserts, without more, that “the matter in controversy
exceeds the value of $75, 000 . . . .” Id. at
10. Defendant fails to provide any explanation whatsoever as
to why the amount in controversy alleged in the notice of
removal is nearly $70, 000 higher than the amount alleged in
plaintiff's petition. Where, as here, the Court questions
defendant's allegations regarding the amount in
controversy, the Court normally requires defendant to provide
evidence establishing the amount in controversy.
Owens, 153 S.Ct. at 554 (“Evidence
establishing the amount is ...