Removal-remand
Sun 12.13.20
I’ve been working this week on an opposition to Landlord i.e. its attorney’s Motion to Remand. He is trying to return my recently gained entry to federal court back to state court, which is champing at the bit to have me evicted, or worse, having me start a de novo trial rehashing all of it again. In other words having to submit oneself to a system designed to find you guilty which earns you the right to a real trial. Actually, I now have 3 lawyers against me. My current attorney who stepped in when I took eviction lawyer’s case to district court, but eviction lawyer is still on the case as current lawyer sends him reports and copies of filings. Opposing lawyer from my own case follows the wishes of the other two and would not agree to have our case consolidated with the Fed eviction because they told her to.
What goes through one’s mind writing these legal documents, challenging and being challenged? I am not a lawyer who is being paid. They are not personally involved; their ego for sure, but they will walk away at some point.
It starts by someone committing an injustice, a wrong, creating an imbalance. You have to decide, is this crossing the line, is this what I will not condone in my life. After my vision quest, undoubtedly the most powerful experience of my life, I came to understand that If I chose to challenge someone I could not step away from the choice, I would be prepared to follow through to even to my death. I had to be serious, as a person, as a writer to speak truth and stand by it. That is how I choose challenges—Am I prepared to die over this matter? In my current challenge, the answer is yes.
This is a problem we humans face more and more in current times. Where is the line that separates me from the culture that surrounds me? Is there any line left or am I just a product of the society I live in? Am I a real person worthy of respect? If I’m a real person then I have to become worthy of respect. As I go over and over the writings on the injustice heaped on me in these legal writings I create, how do I deal with it? These are my thoughts: I am not a victim. What happens to me is the path I have chosen, it is what I want and need. As the Buddhists say, your enemy in the battle is really yourself. It is my line in the sand, my boundaries. It is what I am made of. If you try to enforce your will on me I will challenge you. I expect, and live a peaceful life. With my fellow human beings who presently are very troubled in the disintegrating and increasingly meaningless and purposeless society we live in, I am circumspect.
Below is my response to the Motion to Remand:
RESPONSE TO PETITIONER’S REMAND
Respondent Ms. Saint Pierre (Tenant) responds to (Landlord) Motion to Remand respectfully, as follows:
MS. SAINT PIERRE’S NOTICE OF REMOVAL IS UNTIMELY:
1. After receiving an order from state court seeking documentation of the federal laws to be employed at trial Tenant did file with the district court a Notice of Removal per 28 USC §1446 (b)(3) “Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”
2. The district court found favor in Tenant’s Notice and did remove the Forcible Entry and Detainer (FED) Complaint, #SA-20-301 to its jurisdiction. Landlord argues that the removal was untimely because it did in its FED complaint give notice that “The forcible entry and detainer process of the courts of Maine for evictions are approved by HUD . . .” There was notice of the case’s federal link. He asserts that Tenant had the opportunity to remove the FED case within the 30-day window after she received Landlord complaint and she did not, thus her notice of removal is untimely. In the Supreme Court ruling, Louisville and Nashville Railroad Company v. Mottley, it ruled “It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense to his cause of action is invalidated by some provision of the constitution of the United States . . . they do not show that the suit, that is the plaintiff’s original cause of action, arises under the Constitution. ” In point of fact, Landlord’s statement is false. Landlord did not serve Tenant a 30-day notice of Termination, properly addressed as per HUD requirement, nor did he personally hand Tenant such notice, or slip it under her door.
3. In Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing 545 US 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257 - Supreme Court, 2005 it states “. . . such federal jurisdiction demands not only a contested federal issue, but a substantial one[,]” for the supremacy clause to be invoked. “This means that the plaintiff’s initial complaint must contain the references to the federal question and to the federal issue evoked.” Landlord was merely anticipating Tenant’s probable defense with his pro forma HUD notice.
4. Landlord declares that Tenant was aware of the federal question because Petitioner informed her through its statement. Tenant has been aware since May 2020 of the federal rules governing both her own injunction against Landlord’s agent and later, the FED case. Knowing of the federal laws and rules governing her HUD lease does not immediately grant Tenant access to federal court. Were she to have removed the case to district court on Landlord’s assertion that he was following HUD rules, district court would have rightly rejected it because it lacked a federal question, or a federal issue to adjudicate.
THE STATE COURT COMPLAINT ASSERTS NO CLAIM AGAINST MS. SAINT PIERRE THAT ARISES UNDER THE CONSTITUTION, LAWS AND TREATIES OF THE UNITED STATES:
5. Landlord cites Addo v. Globe Life & Acct. Insurance as proof of Tenant’s untimely removability. Addo’s state court petition, filed less than a month before the Addo letter (the crucial “Other Paper”) was mailed. In his scathing dissent Circuit Judge Wiener states the Addo letter was a sham created to increase Addo’s punitive damages by an outrageous amount fifty times the amount of the principal demand, which Globe Life ignored at their peril. After losing her suit, she used the letter to remove the case to federal court on the basis of diversity jurisdiction because federal jurisdictional minimum had been reached in her demand letter.
6. In citing this case, Landlord seeks to buttress his remand motion but achieves the opposite. The state court’s Procedural Order is not a questionable “Other Paper.” It very straightforwardly states “the court has become aware that the subject housing involves a federal housing subsidy and requires additional information about the applicable rules and regulations that govern these proceedings.” And unlike Globe Life, Tenant acted to remove the case to the circuit court within the thirty day time frame.
7. Tenant and Landlord agreed, per their shared Multi Family Model Lease for Subsidized Programs, to fulfill the obligations set forth by the Department of Housing and Urban Development, a cabinet department of the executive branch of the United State Federal Government. In this matter see 24 CFR 884.118 Responsibilities of the Owner and also, the U.S. Dept. of Housing and Urban Development’s HUD Occupancy Handbook, Chapter 6, Lease Requirements and Leasing activity, also Chapter 8, Termination. Tenants at Northfield pay 30% of their income for their apartments and HUD provides the rest to bring it up to market value of similar Portland apartments. Without HUD there would be no complex on Allen Avenue in Portland. It is the lease’s major obligor and as such mandates what is expected as far as obligations and duties from the two other obligors, and has, in that role, devised laws and rules that protects its interests as well as those of Tenant and Landlord.
8. Landlord quoting Islands Housing Authority v. Coastal General Construction Services Corp.27 F.3d 911, 91 (3rd Cir. 1994) “The fact that a contract is subject to federal regulation does not, in itself, demonstrate that Congress meant that all aspects of its performance or nonperformance are to be governed by federal law rather than by the state law applicable to similar contracts in businesses not under federal regulations.” This citation concerns arbitration for work completed by a construction company in the Virgin Islands under a HUD program, The Comprehensive Improvement Assistance Program 42 U.S.C. 1437 (Supp.1993.) It is in no way related to the eviction of a tenant living in subsidized housing and the federal rules and regulations governing it.
9. Landlord quotes “HUD guidelines place jurisdiction for eviction actions involving subsidized tenants in the hands of state court[,]” from the case of Eden Hous. Mgmt. v. Muhammad. Chapter 8, Termination of the HUD Occupancy Handbook, page 8-17, under the heading, Judicial Action, section D, it states, “A tenant may rely on state or local laws governing eviction procedures where such laws provide the tenant procedural rights that are in addition to those provided by the regulatory agreements, except where such laws have been preempted under CFR PART 246, Local Rent Control, or by other action of the United States.” HUD does not seek to discount its own laws and rules, nor does it demand that tenants pursue their cause solely in the state court.
10. Landlord’s Complaint does not rise to Dept. of Housing and Urban Development’s applicable rules for evicting a tenant. See Hempstead Village Housing Assoc. v. Pitts (2012) which states that the lease may be terminated for "material noncompliance" only if the landlord proves "[s]ubstantial lease violations" or certain types of "[r]epeated minor violations[.]" In order to warrant an eviction for "repeated minor violations," such minor violations must (a) disrupt the livability of the project, (b) adversely affect the health or safety of any person or any tenant's right to quiet enjoyment, (c) interfere with project management, or (d) have an adverse financial effect on the project. See also Newhouse v. Settegast Heights Village Apartments 717 SW 2d 131, 132, 1986 “Any attempt to terminate the tenancy (of any eligible tenant) must comply with HUD requirements as well as with state laws.” Petitioner’s complaints, taking pictures of gardens, climbing out of window, cat climbing out of window do not in any way rise to HUD’s “substantial lease violations, or even to repeated minor violations criteria.
11. The two complaints that are based on lease covenants, namely the gazebo and garden, under the Fair Housing Act, section 818, makes it unlawful to coerce, intimidate, threaten or interfere with any person because he exercised a Fair Housing right . . You may not retaliate against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act. See also Tenant’s Special Motion to Dismiss, (Tenant’s ex I.) where she brought Landlord’s agent to court for rescinding its permission to allow her gazebo in the yard. As to the garden, there are many tenant gardens at Northfield Green.
CONCLUSION
12. Petitioner’s remand on the basis of an untimely removal of its Forcible Entry and Detainer Complaint rests on two contentions; one, that she knew about the federal status of her lease at the onset of its case and did not act within the first 30 day window of opportunity. Only the Petitioner has the option to bring his suit to district court; she was barred from doing so. Two, the state court’s procedural order is a legitimate inquiry into the federal laws applicable in instant case and therefore makes it removable. In its pursuit of its eviction, Petitioner has breached its contract with HUD and the state in numerous areas of both federal and state laws.
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed before this court, that Petitioner’s Motion to Remand be dismissed, together with such other and further relief to which this Court deems just, proper and equitable.
The all-time favorite essay, over and above everything else I post on this site, from at least 20 to 30 countries is The Sweat Lodge Ritual the Lakota purification ceremony.
