United States District Court, D. New Jersey
RONALD OTTAVIANCE, TRUSTEE, ROSEWATER TRUST, and MICHAEL B ALICE,, Plaintiffs,
AVS PROPERTIES, LLC Defendant.
MCNULTY, UNITED STATES DISTRICT JUDGE
Introduction and Background 
se plaintiff Michael Balice has an extensive litigation
history with this Court. In 2014, the United States
government bought a federal tax collection action against
Balice and his former spouse. In an action filed in this
court, the United States reduced to judgment the overdue tax
liability of Balice and his former spouse. United States
v. Balice et al, Civ. No. 14-3937 (D.N.J.). Plaintiff
Rosewater Trust, a nominal owner of the Metuchen property,
was found to be Balice's nominee or alter ego, and set
aside. United States v. Balice et al, Civ. No.
14-3937 (D.N.J.) (DE 210).
issued an order of sale allowing the Internal Revenue Service
("IRS") to sell the property and directing Balice
to vacate the premises. Defendant AVS Properties, LLC
("AVS") submitted the winning bid for the property
at a public auction. The Court thereafter confirmed the sale
and directed the clerk to distribute the proceeds, applying a
portion to Balice's unpaid tax liabilities. The Court
also directed the Government to convey the real property to
AVS by deed. The action in this Court was characterized by
repetitive, indeed abusive, motion practice by Mr. Balice in
which he continually refiled the same or similar "tax
protester" arguments to the effect that the income tax
is unconstitutional. Balice appealed fifteen decision entered
by me and nine decisions issued by the Magistrate Judge. The
Third Circuit consolidated the appeals and affirmed. See
United States v. Balice et al, C.A. No. 17-3134 (3d
Balice also filed a series of parallel actions in an attempt
to prevent the sale of the home and enforcement of the
federal court judgment. First, he brought an action in the
Superior Court of New Jersey, Middlesex County, which was
subsequently removed pursuant to 28 U.S.C. § 1442(a)(1).
See Balice v. United States, Civ. No. 17-13601
(D.N.J.). The complaint was brought against the United
States, the Attorney General, and two agents of the IRS, as
well as myself. That case was assigned to Chief Judge
Wolfson, who dismissed the complaint with prejudice based on
sovereign and judicial immunity. The Third Circuit affirmed.
Balice v. United States, 763 Fed.Appx. 154 (3d Cir.
Balice filed a second complaint in state court, which was
substantively identical to the first state-court complaint.
This complaint was ultimately dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(6). Balice v. United States
of America, Civ. No. 17-10291 (D.N.J.) (DE 11). He then
filed for bankruptcy and sought to discharge the tax debt by
filing a series of motions and an adversary proceeding. That
case was dismissed without discharge. In re Balice,
No. 17-32967 (Bankr. D.N.J. Nov. 13, 2017) (DE 68).
August 2, 2018, Mr. Balice filed a third state-court action,
again attacking the basis of the underlying tax action.
Balice v. United States of America, et al, Civ. No.
18-13560. That action reasserted the same allegations and
claims which he pled in the first state-court complaint. It,
too, was dismissed. Balice v. United States of America,
et al, Civ. No. 18-13560 (DE 9).
and Ronald Ottavianno, as "Trustee" of the
Rosewater Trust, now sue AVS for "unlawful invasion of
the plaintiffs property." On October 23, 2018, Balice
filed a complaint in the Superior Court of New Jersey,
Middlesex County. The present complaint alleges that the
execution of the judgment entered in the underlying tax
collection action (which Balice refers to as a "foreign
judgment") violated various New Jersey statues and the
New Jersey Constitution. Balice seeks declaratory and
injunctive relief "from the unlawful and violative
invasion of plaintiffs private and personal property,"
"from the unlawful claims to the property being made by
the defendant through an unregistered foreign process,"
and to prevent "any further or future claims" to
the Metuchen property.
before the Court are several motions: (1) the
Government's motion to intervene and dismiss the
now-removed complaint (DE 2); (2) Balice's motion to
remand to New Jersey State Court (DE 4); and (3) Balice's
motion for default against AVS (DE 12).
also seeks to "strike" (1) the Government's
motion to intervene (DE 6); (2) the Government's
opposition to Balice's motion to remand (DE 9); and (3)
the Government's opposition to Balice's motion to
strike (DE 11).
foregoing reasons, Balice's motion to remand is granted.
The remaining motions are administratively terminated as
Balice's Motion to Remand
address the propriety of the Government's removal and
this Court's jurisdiction. Balice seeks to remand this
matter to state court for lack of subject matter jurisdiction
and because the Government does not have "standing"
to represent AVS. (DE 4). Balice argues that this matter does
not involve the collection of revenue, but "only
involves the enforcement of a federal court judgement."
(DE 4, at 2). Balice also provides general law on this
Court's jurisdiction, the removal process, and dual
sovereignty. (See generally DE 4). He contends that
this case is not about the collection of revenue, but about
the enforcement of a federal judgment, which he believes can
only be done in State court. (DE 4, at 13-17, 19). To the
contrary, however, are Federal Rule of Civil Procedure 70
(recognizing that federal court may enforce judgment for real
property by "enter[ing] a judgment divesting any
party's title and vesting [real or personal property] in
others."), and Rule 64 (providing that "every
remedy" that is available "under the law of the
state where the court is located, . . . for seizing a person
or property to secure satisfaction of the potential
judgment" is also available in federal court).
Government contends that removal was proper under either 28
U.S.C. § 1442(a) or 1441(a). (DE 5, at 4-5). The
Government dedicates less than two pages of its brief to
removal under these provisions, providing little more than a
citation to the statutes. (See id.).
response, which he has styled a "motion to strike"
(DE 9), points out that the Government is not a named
defendant in the state complaint, and no longer has any
interest in the property that has been sold and conveyed to
AVS. (He also attacks the validity of that conveyance,
address each basis for removal in turn.
Removal under §1441(a)
more commonly invoked provision for removal to federal court,
28 U.S.C. § 1441(a), provides that a defendant
in a state court civil action may remove the case to federal
court if the federal court would have original jurisdiction
to hear the case. See 28 U.S.C. § 1441(a)
("any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States
for the district and division embracing the place where such
action is pending." (emphasis added)); Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392 (1987).
the plain and unambiguous language of 28 U.S.C. §
1441(a), courts have held that only a named defendant may
remove an action to federal court under this provision.
See Sheppard v. Sheppard, 481 F.Supp.2d 345, 347-48
(D.N.J. 2007) ("The plain language of the statute
clearly limits the right of removal to 'defendants.'.
. .To interpret 'defendant' to include non-parties
would produce an absurd result and would contravene more than
65 years of jurisprudence that has only allowed removal by
'defendants' to claims asserted by a
plaintiff."); Gross v. Deberardinis, 722
F.Supp.2d 532, 534 (D. Del. 2010) ("Even assuming Local
1545 Pension Plan is the real-party-in-interest, the Court
concludes that it is not a 'defendant' within the
meaning of § 1441(a), and therefore, is not entitled to
remove this action."); Smith v. St. Luke's
Hosp., 480 F.Supp. 58, 61 (D.S.D. 1979) ("A holding
that an intervenor-plaintiff can remove would be an
unwarranted expansion of jurisdiction by use of [§
1441]."); Kane v. Republica De Cuba, 211
F.Supp. 855, 856-58 (D.P.R. 1962) (holding that nonparty who
did not intervene in state court action may not file for
removal); Dep't of Fin. of Sussex Cnty. v. Polk
Heirs, 2017 U.S. Dist. LEXIS 201176, at *4-5 (D. Del.
Dec. 1, 2017) (finding removal improper under 1441(a) because
removing party did "not have standing to remove this
case. He is not a defendant nor an intervenor in the State
action."); cf. Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 103 (1941) (affirming Fifth
Circuit decision that "the plaintiff in the state court
was not a 'defendant' within the meaning of section
28 of the Judicial Code, and so was not entitled to remove
the cause under that section.").
28, U.S. Code, Section 1446, which outlines the procedure for
removal under § 1441(a), confirms that the removing
party must be a named defendant. Even if the Government or
some other party deems itself a "real party in
interest" in the underlying action, it still "may
not remove or participate in the removal of a case"
under § 1441. Gross, 722 F.Supp.2d at
the Government is not a named defendant in the state
complaint. It therefore cannot seek removal under §
1441, even if it is the "real party in interest."
Accordingly, removal under § 1441 is not authorized.
Removal under ...