Lang et al v. Schmitt

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Korrine Lang and Lloyd Kleppe, as 	)
Co-Personal Representatives of the 	)
Estate of Harlan Kleppe, Deceased, 	)
) 	ORDER GRANTING MOTION FOR
Plaintiffs, 	) 	REMAND
)
vs. 	)
) 	Case No. 1:23-cv-157
Cody Rodney Schmitt, 	)
)
Defendant. 	)
Before the court is a Motion for Remand filed by Plaintiffs on August 30, 2023. (Doc. No.
6). Plaintiffs seek to remand two matters removed by Defendant Cody Rodney Schmitt (“Schmitt”):
(1) Kidder County Probate File, In the matter of the Estate of Harlan Kleppe, deceased, Kidder
County Case No. 22-2022-PR-00012; and (2) A Kidder County Quiet Title Action titled Korrine
Lange and Lloyd Kleppe, as Co-Personal Representatives of the Estate of Harlan Kleppe, Deceased
v. Cody Rodney Schmitt, Kidder County Case No. 22-2023-CV-00016. The parties have consented
to the court’s exercise of jurisdiction over this matter. (Doc. Nos. 5 and 8). For reasons discussed
below, Plaintiffs’ motion is granted.
I. 	BACKGROUND
Harlan Kleppe (“Harlan”) died on August 31, 2022. 	(Doc. No. 6-1). 	Two of Harlan’s
siblings, 	Korrine Lang (Korrine”) and Lloyd Kleppe (“Lloyd”) were appointed as Co-Personal
Representatives of Harlan’s estate by the state district court in Kidder County, North Dakota. ( Doc.
Nos. 6-1 and 6-2 ).
A Notice to Creditors (“Notice”) was published in the Steele Ozone & Kidder County Press
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on October 12, 19, and 26, 2022. 	(Doc. No. 6-4). 	It advised that Korrine and Lloyd had been
appointed the Co-Personal Representatives of Harlan’s estate and that, pursuant to N.D.C.C. § 30.1-
19-01, persons with claims against the estate had three months from the first date of the Notice’s
publication in which to present them. (Id.).
On January 20, 2023, Schmitt filed a claim against Harlan’s estate. 	(Doc. No. 6-5). On
February 9, 2023, Korrine and Lloyd denied Schmitt’s claim on the grounds that it lacked merit and
supporting documentation, did not comply with the requirements of N.D.C.C. § 30.1-19-04, and was
untimely and therefore barred by N.D.C.C. 	§ 30.1-19-03. 	(Id.). 	They advised Schmitt that,
pursuant to N.D.C.C. § 30-1-19-04, he had sixty days to either to petition the state district court for
an allowance of his claim or commence a proceeding against them. (Id.).
On February 9, 2023, Schmitt caused a Public Notice to be recorded against the following
property of Harlan’s in Kidder County (hereafter referred to as the “Subject Property”):
Township 138 North, Range 72 West
Section 16: NEl/4 and SWl/4
Section 21: NEl/4 and Wl/2
Section 29: Nl/2
(Doc. No. 6-7). He claimed that he had acquired an interest in the Subject Property pursuant to a
preliminary agreement he had reached with Harlan prior to his death. 	.
On March 21, 2023, Korrine and Lloyd filed an action against Schmitt on behalf of Harlan’s
estate, seeking to quiet title to the Subject Property. (Id.). On May 22, 2023, they filed a Motion for
Summary Judgment. (Id.). On August 7, 2023, state district court in Kidder County held a hearing
on the motion. 	(Id.). 	Finding that the preliminary agreement between Schmitt and Harlan had
created no estate, interest in, or encumbrance upon the Subject Property, it issued an order on
August 16, 2023, granting the Motion for Summary Judgment and clearing title to the Subject
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Property of Schmitt’s claim. (Id.). Judgment was entered that same day. (Doc No. 6-10).
On August 22, 2023, Schmitt filed an Notice of Removal with this court. (Doc. No. 1). He
seeks to remove both the quiet title action and the probate of Harlan’s estate to this court. As the
basis for this court’s exercise of jurisdiction, he cites, among other things, 28 U.S.C. §§ 1331, 1441
and 1446, 28 U.S.C. § 1391, 1 28 U.S.C. § 1602, 2 the Quiet Title Act,3 the Uniform Probate Code.
and Electronic Signatures in Global and National Commerce Act (“ESIGN Act”).4 (Doc. Nos. 1 and
1-1). He complains of “various willful, systemic depravations of fundamental Rights guaranteed
by the Constitution and/or Federal law, and which Depravations are civil violations and criminal
violations . . . .” (Doc. No. 1-4) (errors in original). He goes on to assert that he has an interest in
the Subject Property by virtue of his preliminary agreement with Harlan, that he provided one of
Harlan’s siblings with the preliminary agreement at Harlan’s funeral, that Lloyd had the preliminary
agreement in his possession by late September 2022, and that Korrine and Lloyd had committed a
fraud upon the state district court during the course of the probate of Harlan’s estate as they failed
to personally serve him with the Notice to Creditors and conspired to conceal his preliminary
agreement with Harlan. He further asserts that the state district court did not have jurisdiction to
1 28 U.S.C. § 1391 pertains to venue generally as opposed to jurisdiction.
2 28 U.S.C. § 1602 pertains to the claims of foreign states and therefore has no applicability in this matter.
3 The Quiet Title Act provides subject-matter jurisdiction and a waiver of sovereign immunity for quiet title
actions against the United States. See N. New Mexicans Protecting Land Water & Rts. v. United States, 161 F. Supp.
3d 1020, 1037 (D.N.M. 2016) (citing 28 U.S.C. §§ 1336(f) and 2409(a)). It has no applicability in the instant action as
the United States has not claimed title to the Subject Property and was not party Korrine’s and Lloyd’s quiet title action.
4 The E-SIGN Act does not confer federal question jurisdiction. See e.g,, Yoshimura v. Takahashi, 446 F.
Supp. 3d 644, 652 (D. Haw. 2020) (“Plaintiff's reliance on federal law does not alone create federal question jurisdiction.
For a case to arise under federal law, federal law must create the cause of action . . . . But no provision of the E-SIGN
Act, nor any case interpreting it, recognizes such a private right of action based on the electronic form of a document.”
(internal citations, quotation marks, and alternations omitted)).
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proceed with the quiet title action as the probate of Harlan’s estate was “initiated in fraud.” 	(Id.).
Interspersed among these assertions are allegations that counsel representing Harlan’s estate sent
him threatening and intimidating emails, that Lloyd slandered him, and that the Kidder County
Sheriff violated his Fourth Amendment rights. (Id.).
On August 30, 2023, Korrine and Lloyd filed a Motion to Remand. (Doc. No. 6). Asserting
that removal of the quiet title action and the probate of Harlan’s estate by Schmitt was improper as
this court lacks jurisdiction, they request that these matters be remanded back to state court. (Id.).
They further request that the court order Schmitt to pay the $1,200.00 in attorney’s fees that they
incurred as a result of the removal. 28 U.S.C. § 1447(c). (Id.).
On September 11, 2023, Schmitt filed a response in opposition to the Motion to Remand,
asserting, among other things, that Korrine and Lloyd’s request for remand lacks support in both
law and fact. (Doc. No. 18).
II. 	APPLICABLE LAW
A. 	Jurisdiction
‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by
Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 	Federal courts have original subject
matter 	jurisdiction over claims for alleged violations of federal laws or the United States
Constitution. 	See 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343(3)
(jurisdiction for enforcement of federal constitutional and statutory rights). Federal courts also have
subject matter jurisdiction over civil actions between parties with complete diversity of citizenship
where the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). Complete diversity
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exists when no defendant is a citizen of the same state as any plaintiff. OnePoint Solutions, LLC
v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). “In a case with multiple plaintiffs and multiple
defendants, the presence in the action of a single plaintiff from the same State as a single defendant
deprives the district court of original diversity jurisdiction over the entire action.” Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).
B. 	Removal
28 U.S.C. § 1441 authorizes the removal of state civil actions to federal court. It provides
in relevant part that defendants may remove a civil action brought in state court to federal court
provided that the federal court either has (1) original jurisdiction, or (2) has jurisdiction on the basis
of diversity of citizenship and the amount in controversy exceeding $75,000. 28 U.S.C. § 1441 (a)-
(b).
28 U.S.C. § 1446 sets forth the procedure for removal of civil actions from state to federal
court. It provides the following in relevant part:
(a) Generally.– A defendant or defendants desiring to remove any civil action from
a State court shall file in the district court of the United States for the district and
division within which such action is pending a notice of removal signed pursuant to
Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain
statement of the grounds for removal, together with a copy of all process, pleadings,
and orders served upon such defendant or defendants in such action.
(b) Requirements; generally.– (1) The notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the claim for relief
upon which such action or proceeding is based, or within 30 days after the service
of summons upon the defendant if such initial pleading has then been filed in court
and is not required to be served on the defendant, whichever period is shorter.
* * *
(d) Notice to adverse parties and State court.– Promptly after the filing of such notice
of removal of a civil action the defendant or defendants shall give written notice
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thereof to all adverse parties and shall file a copy of the notice with the clerk of such
State court, which shall effect the removal and the State court shall proceed no
further unless and until the case is remanded.
28 U.S.C. § 1446(a), (b)(1), and (d).
Because federal courts are courts of limited jurisdiction, removal statutes are strictly
construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941); see also Dahl v. R.J.
Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007) (The district court is required to “resolve
all doubts about federal jurisdiction in favor of remand.”). “If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c); see Julien v. CCA of Tenn., Inc., 268 F. Supp.2d 19, 21 (D.D.C.2003) (“If a defect
in removal procedures ... becomes apparent at any point prior to final judgment, the removal court
must remand the case to the state court from which the defendants originally removed the case.”);
see also Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007) (opining that the
district court is required to “resolve all doubts about federal jurisdiction in favor of remand.”); State
Farm Fire & Cas. Co. v. Valspar Corp., Inc., 824 F. Supp. 2d 923, 932 (D.S.D. 2010) (opining that
the court must “strictly construe the removal statutes against removal and resolve any doubts in
favor of remand.” (internal citations omitted)).
III. 	DISCUSSION
A. 	Quiet Title Action
The court is inclined to grant Korrine’s and Lloyd’s motion as it pertains to the quiet title
action. The quiet title action did not involve any claim arising under federal or the Constitution.
Rather, it was brought pursuant to state law. There is no diversity of citizenship between the parties.
Harlan was domiciled in North Dakota. 	Co-Representatives Land and Kleppe are domiciled in
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North Dakota. Schmitt is domiciled in North Dakota.5 Consequently, this court has neither federal
question jurisdiction nor diversity jurisdiction over this matter.
As an aside, the court notes that Schmitt’s Notice of Removal is untimely. Schmitt did not
file the notice within 30 of receiving the initial pleading in the quiet title action but rather 6 days
after final judgment entered in the quiet title action. (Doc. No. 6-10).
B. 	Probate of Harlan’s Estate
The court is also inclined to grant Korrine’s and Lloyd’s motion as it pertains to the probate
of Harlan’s estate.
“The administration of decedents’ estates typically is governed by rules of state law and
conducted by state probate courts. Occasionally, however, disputes between interested parties arise,
either in the probate proceeding itself or elsewhere, that qualify as cases or controversies that federal
courts have jurisdiction to decide.” Marshall v. Marshall, 547 U.S. 293, 315 (2006) (J. Stevens,
concurring). This is not one of the cases that qualifies, however,
This court lacks federal question and diversity jurisdiction over this matter. The probate of
Harlan’s estate does not involve the application of federal law or otherwise raise any constitutional
issues. And, as noted above, there is not a diversity of citizenship between the parties. 6
5 In a document captioned “Pleadings for Revocation with Federal Questions,” Schmitt states: “On information
and belief, all parties reside in this judicial district, and the events giving rise to he claims asserted herein all occurred
within this district.” (Doc. No. 1-4). He then goes on to assert that the state district judge created diversity by showing
bias to him in the quiet title action. (Id.). The notion that statements or rulings by the state district judge creates diversity
of citizenship in this case for purposes of the federal statutes governing removal is patently absurd.
6 Even if parties were of diverse citizenship, this court would likely lack jurisdiction due to the probate
exception. “The probate exception is a judicially-created limitation on federal court subject matter jurisdiction, which
prohibits the exercise of jurisdiction even where . . . all the prerequisites for diversity jurisdiction are otherwise present.
“Sianis v. Jensen, 294 F.3d 994, 997 (8th Cir. 2002) (citing Markham v. Allen, 326 U.S. 490, 494 (1946)). It “reserves
to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes
federal courts from endeavoring to dispose of property that is in the custody of a state probate court.” Marshall v.
Marshall, 547 U.S. 293, 311 (2006) (recognizing that probate exception does not bar federal courts from adjudicating
matters outside those confines or probate otherwise within federal jurisdiction.); see also Markham, 326 U.S. at 494 ("It
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IV. 	CONCLUSION
Plaintiff’s Motion to Remand (Doc. No. 6) is GRANTED. The quiet title action (Korrine
Lange and Lloyd Kleppe, as Co-Personal Representatives of the Estate of Harlan Kleppe, Deceased
v. Cody Rodney Schmitt, Kidder County, Case No. 22-2023-CV-00016) and the probate of
Harlan’s estate (In the matter of the Estate of Harlan Kleppe, deceased, Kidder County
Case No. 22-2022-PR-00012) are REMANDED back to the state district court in Kidder
County. The court will not require Schmitt to reimburse Plaintiffs for the $1,200.00 in attorney’s
fees they claim to have incurred as a result of the removal as they have not submitted
documentation in support of such a award.
IT IS SO ORDERED.
Dated this 18th day of September, 2023.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
is true that a federal court has no jurisdiction to probate a will or administer an estate . . . . But it has been established
by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits in favor of
creditors, legatees and heirs and other claimants against a decedent's estate to establish their claims so long as the federal
court does not interfere with the probate proceedings or assume general jurisdiction of the probate).
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