United States of America, Appellee, v. Michael Todd, Appellant, v. State of Arkansas, Arkansas State Police Department, and David D. Stills, Appellees.
No. 00-1431
United States Court of Appeals, Eighth Circuit
Filed: April 3, 2001
Submitted: January 12,
Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and DOTY, District Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Michael Todd was a defendant in a federal criminal case when he filed a lawsuit in state court, pursuant to the
On appeal, Mr. Todd does not challenge the dismissal of his case. Instead, he argues,
I.
Mr. Todd maintains that the removal of his case to federal court was improper because he did not sue any federal defendant or rely on any federal law in his complaint. We review the district court‘s exercise of removal jurisdiction and denial of a motion to remand de novo. See Krispin v. May Department Stores Co., 218 F.3d 919, 922 (8th Cir. 2000); see also County of St. Charles, Missouri v. Missouri Family Health Council, 107 F.3d 682, 684 (8th Cir. 1997), cert. denied, 522 U.S. 859 (1997).
The removal statute applicable to federal officers and federal agencies, see
To qualify for removal, a defendant must, among other things, raise “a ‘colorable defense arising out of [the defendant‘s] duty to enforce federal law,’ ” Mesa v. California, 489 U.S. 121, 133 (1989), quoting Willingham, 395 U.S. at 407. Mr. Todd contends that the removal was improper because the United States did not propose a colorable federal defense, but we disagree. For a defense to be considered colorable, it need only be plausible;
We think that the United States has presented at least one colorable defense to Mr. Todd‘s complaint. The United States argued that Mr. Todd‘s lawsuit runs afoul of the federal Freedom of Information Act, see
II.
Mr. Todd‘s case was assigned directly to the district judge who was presiding over Mr. Todd‘s federal criminal case and who consequently had issued a number of discovery rulings that apparently related to matters contained in the investigative files that Mr. Todd was seeking. (This assignment evidently came about because
The district judge, in deciding to proceed with the matter, recognized that the case should have been docketed as a new civil action, assigned randomly, and then consolidated with the criminal case on motion of either of the parties. The judge thought, however, that it would “elevate form over substance” to require a formal motion of consolidation, and we agree, especially since the government wanted him to hear the matter and since the government‘s acquiescence counts, in our view, as a motion to consolidate. We discern nothing in the local rules, however, that would determine what individual judge would have been assigned to the consolidated cases, although we note that consolidated criminal cases are to be “assigned to the judge with the lower (lowest) case number,” see E.D. Ark. Gen. Order 39(c). If a similar principle had been followed in this case, the district judge would have been allowed to keep Mr. Todd‘s case because it was filed after his criminal case.
In any event, the district judge decided to keep the case on another ground, namely, that judicial economy, the principle that informs decisions on whether to assign cases directly to judges under E.D. Ark. Gen. Order 39, would be served by his doing so. We see nothing in the local rules that prevents such considerations from guiding
decisions with respect to consolidating cases and assigning a judge to those cases, and, indeed, it makes good sense to allow those considerations to guide both decisions. We conclude, therefore, that there was no violation of E.D. Ark. Local R. 40.1 or other legal error in the manner in which the district judge came to hear Mr. Todd‘s case.
We observe, too, that although local rules have the effect of law, see Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 426 (8th Cir. 1997), a violation of E.D. Ark. Local R. 40.1 would not in any event, as Mr. Todd urges, have had the effect of depriving the district judge of jurisdiction over the case. Observance of the rule is not jurisdictional, even though we suppose that its violation might, in an appropriate case, require a remand to the district court for reassignment of the case.
III.
For the reasons indicated, we affirm the order of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.