Henry-Dale Goltz and
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT
Henry-Dale Goltz |
Evangelina Goltz |
Against | CIVIL NO. SA-06-CA-0768-XR
ET AL |
AFFIDAVIT OF NON-ACCEPTANCE
OF REMOVAL FROM STATE COURT
Petitioners Henry-Dale Goltz and Evangelina Goltz hereby petition for dismissal and remand of this removal action that is defective pursuant to Rule 12(h) (3), Fed.R.Civ.P., and pursuant to Title 28 U.S.C., for lack of subject matter jurisdiction and other causes.
Affidavit to Establish Federal Court without Subject Matter Jurisdiction
Petitioners now declare and say under penalties of perjury:
1. Petitioners filed this case with State
Court which has exclusive jurisdiction in an in rem motion with the res
residing in the County and is not removable from
2. The place for recording and the
validity of the documents is a matter totally controlled by
3. This cause is an action in rem in the nature of a counterclaim against the papers titled “Notice of Federal Tax Lien”, hereafter “alleged liens”, filed in the Bexar County Clerk Records Department by the entity defined thereon as “VIC DIETZ”, who by filing such in the Bexar County records, made a claim to interest in property in Bexar County within the purview of the Texas state courts.
4. That, by
filing “alleged liens” into the Bexar County Records Department, becomes
5. Neither “VIC DIETZ” nor any government entity are being sued civilly as a defendant or prosecuted by this action.
6. “Alleged liens”
are in the possession of the Bexar County Clerk and were filed under the Texas Property
Code Chapter 14: 14.001 through 14.007 indicating their being filed under
7. “VIC DIETZ”
is named as the respondent for the limited purpose of settling the issue of
whether “alleged liens” filed into the
8. The Petitioner herein relies upon the foregoing “exclusive original jurisdiction” as being the controlling law in relation to the courts, whether local, state, or federal, and neither “VIC DIETZ” (nor agents it represented) have given evidence that the state of Texas has ceded the “exclusive original jurisdiction”.
9. “Alleged liens” remain in the Bexar County Clerk records and have not been removed therefrom by any lawful means to a records department in the federal courts.
10. The foundation for this in rem action is in Texas Statutes requiring an order from the state court of the County where the property is located.
11. State court
territorial jurisdiction is determined by the Due Process Clause of the
Fourteenth Article of Amendment of the Constitution for the
12. Federal courts have limited jurisdiction in that they can only hear cases that fall both within the scope defined in the Constitution in Article III Section 2 and Congressional statutes, specifically:
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; --”to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction; --to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another state;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects”.
13. The judicial power stated in the above Article III has no provision to allow a Federal Court to assume jurisdiction of an in rem motion with the res residing inside the state.
14. Pursuant to Mitchell v. Maurer, 293 U.S. 237 (1934), holding that, federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer non-existing jurisdiction by consent or conduct, “[the party] has not affirmatively established that subject matter jurisdiction exists in this federal court and this court must remand this action back to the state court for this cause alone”.
15. If “alleged liens” filed into the Bexar County Clerk records is not based upon fraud, then entity “VIC DIETZ” has an opportunity to reveal the truth as to the facts, law and regulations upon which “alleged liens” are founded and substantiate the matter in the court of competent jurisdiction for a just resolution of the matter.
16. Courts should
strictly construe removal provisions and whenever there is any doubt whether or
not to remove, removal should be denied.
17. State court
authority should not be superseded by federal courts without special authority
and this section is to be strictly construed against removal. Garza v. Midland Nat. Ins. Co., D.C.
18. “And where a state court first acquires control of the “res”, the federal courts are disabled from exercising any power over it, by injunction or otherwise”
first acquiring jurisdiction or assuming control of such property is entitled
to maintain and exercise its jurisdiction to the exclusion of the other”
O.D. Jennings &
Co. v. Butler-Baugh, 89 F.Supp. 553 (USDC.
19. “In order to overcome the interdiction of federal interference in state judicial proceedings, two express preconditions must be shown before relief may be granted to a federal plaintiff; the moving party must demonstrate that he will suffer irreparable injury if the federal court stays its hand, and, second he must demonstrate that he does not have an adequate remedy at law in the state courts.
“Failure to pursue state appellate remedies is a factor to be considered in refusing federal intervention in an ongoing state civil proceeding.”
“A party may not invoke the aid of a federal court, alleging that his state remedies are inadequate, without having first tested the sufficiency of those remedies and having found them to be wanting.” Elizabeth Ann Duke et al. v. The STATE OF TEXAS et al., 477 F.2d 244 (1973)
Further concerning Jurisdiction In Rem:
In Arndt v. Griggs, 134
“has control over property within its limits; and the condition of ownership of real estate therein...”
They go on to say;
“The well-being of every community requires that the title of real estate therein shall be secure, and that there be convenient and certain methods of determining any unsettled question respecting it.”
They were very explicit in relationship to which court holds exclusive jurisdiction in these matters;
“The duty of accomplishing this is local in its nature; it is not a matter of national concern or vested in the general government; it remains with the state, and as this duty is one of the state, the manner of discharging it must be determined by the state...” (emphasis added)
Further, concerning judicial decision on hearing motion:
essential elements to any case or controversy, whether administrative or
judicial, and/or arising under the constitution and laws of the United States
Article III § 2, U.S. Constitution. (See Federal
Maritime Commission v. South Carolina Ports Authority 535
The following elements are essential:
8.1 When challenged, Standing, Venue and all elements of Subject Matter Jurisdiction, including compliance with substantive and procedural due process requirements, must be established in the record;
8.2 Facts of the case must be established in record;
8.3 Unless stipulated by agreement, facts must be verified by competent witnesses via testimony (affidavit, deposition or direct oral examination);
8.4 The law of the case must affirmatively appear in the record, which, in the case of a tax controversy, includes taxing statutes with attending regulations;
8.5 The advocate of a position must prove application of law to stipulated or otherwise provable facts;
8.6 The trial court, whether administrative or judicial, must render a. written decision that includes findings of fact and conclusions of law. (Emphasis Supplied)
Notice of Non-acceptance of Removal
The Petitioner hereby gives notice of non-acceptance of the alleged removal action for the following causes:
1. The Petitioner does not give consent for this action to be removed from the “exclusive original jurisdiction” in the state circuit court to the federal legislative court that is without injunctive powers for such removal or for the remedy hereto.
2. The Petitioner’s state case is an action
in rem and operates on paper that is
in the possession of the Clerk of Court in
said paper involves the “right of possession of real property” within
4. The adjudication of this case specifically requires an order from the state court which is beyond the jurisdiction and power of the federal court to provide.
Dismissal of Removal Action
Pursuant to the foregoing causes for non-acceptance and additional causes set forth in this Affidavit, this removal action must be dismissed and the case remanded back to the proper state court.
Affiants declare under penalty of perjury that state court holds exclusive jurisdiction and is the only court that has jurisdiction to be able to rule in relief.
Therefore Petitioners pray:
cause exists for this removal action to be dismissed and remanded back to the
2. Therefore, pursuant to the foregoing and the causes set forth in this Affidavit, this federal court is without subject matter jurisdiction of the res and/or the issues of this action and the Petitioner hereby petitions for this removal action to be dismissed and remanded back to the Texas state district court forthwith as a matter of law and subject matter jurisdiction.
So Say Affiants,
Henry-Dale Goltz Evangelina Goltz