UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

FRANK R. MONTERO, 

 Plaintiff - Appellant, No. 18-5011 

D.C. No. 4:17-CV-00622-TCK-JFJ 

(N.D. Okla.) 

v. 

TULSA AIRPORT 

IMPROVEMENTS TRUST, 

 Defendant - Appellee. 

ORDER AND JUDGMENT*

Before MATHESON, McKAY, and BACHARACH, Circuit Judges. 

In this case, a pro se plaintiff sued in state court and then purported 

to transfer or remove the case to federal court. The federal district court 

dismissed the action based on the Rooker-Feldman doctrine. Though this 

doctrine doesn’t apply, a plaintiff can’t transfer or remove a case to federal 

 

* Oral argument would not materially help us to decide this appeal. See 

Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). We have thus decided 

the appeal based on the briefs and record on appeal. 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 20, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

court after suing in state court. We thus vacate the dismissal and remand 

with directions to remand the case to state district court. 

1. Background 

Mr. Frank Montero sued the Tulsa Airport Improvements Trust in 

Oklahoma state district court. The state district court entered judgment for 

the Trust and awarded attorney’s fees to the Trust. Mr. Montero then 

unsuccessfully moved for post-judgment relief and appealed to the 

Oklahoma Supreme Court. 

While the appeal was pending in the Oklahoma Supreme Court, Mr.

Montero began this action in federal district court by moving to transfer 

venue. In the motion, Mr. Montero 

 referred to the state case and 

 purported to either transfer the state case to federal district

court (under 28 U.S.C. § 1404(a)) or remove the state case to 

federal district court (under 28 U.S.C. § 1441). 

The federal district court dismissed the action sua sponte under the 

Rooker-Feldman doctrine, which would preclude subject-matter 

jurisdiction.1

 The plaintiff appeals the dismissal.2

 

1

 The Trust also moved to strike Mr. Montero’s filings and to dismiss 

the case for lack of subject-matter jurisdiction. The district court did not 

rule on these motions.

2

 Mr. Montero also filed a motion to alter the dismissal. The district 

court denied this motion, but Mr. Montero did not file a notice of appeal 

with respect to that ruling. 
3 

2. The District Court’s Reliance on the Rooker-Feldman Doctrine 

 We engage in review de novo of the dismissal for lack of subjectmatter jurisdiction. Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 

2006). Exercising de novo review, we conclude that the district court erred 

in dismissing the action under the Rooker-Feldman doctrine. “[F]ederal 

jurisdiction is not barred by the Rooker-Feldman doctrine if suit ‘was filed 

before the end of the state courts’ appeal process.’” Id. (quoting Guttman 

v. Khalsa, 446 F.3d 1027, 1029 (10th Cir. 2006)). Mr. Montero brought 

this suit before the state-court appeal was decided, so the Rooker-Feldman

doctrine does not apply. 

3. Invalidity of Mr. Montero’s Transfer or Removal

 But we conclude that the district court lacked jurisdiction because a 

plaintiff cannot 

 transfer a case from state court to federal district court under 

28 U.S.C. § 1404(a) or 

 remove a case from state court to federal district court under 28 

U.S.C. § 1441.3

 

3

 Mr. Montero argues that the defendant was late in moving to dismiss. 

A motion to dismiss (or remand) for lack of subject-matter jurisdiction can 

be made at any time. See Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (“A 

litigant generally may raise a court’s lack of subject-matter jurisdiction at 

any time in the same civil action, even initially at the highest appellate 

instance.”); Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 392 (1998) 

(noting that a motion to remand for lack of subject-matter jurisdiction may 

be made “at any time”). But even if the Trust had been late in raising the 

issue, we would need to decide sua sponte whether jurisdiction existed in 
4 

 Section 1404(a) authorizes a federal district court to transfer a case 

on its docket to another federal district court; this section does not allow a 

state court to transfer a case to federal court. See 28 U.S.C. § 1404(a); see 

also Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 

(10th Cir. 1991) (“Congress enacted 28 U.S.C. § 1404(a) in 1948 ‘as a 

federal housekeeping measure, allowing easy change of venue within a 

unified federal system.’” (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 

235, 254 (1981))). 

 Section 1441 does permit removal of a case from state court to

federal court. But a plaintiff like Mr. Montero cannot remove the case. See

Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 643 (2d Cir. 1993) (per 

curiam) (“No section [of the U.S. Code] provides for removal by a 

plaintiff.”); see also 14C Charles Alan Wright, et al., Federal Practice and 

Procedure § 3730, at 607 (2018) (stating that “plaintiffs cannot remove”

cases to federal court). 

* * * 

 

district court. Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 

F.3d 1016, 1029 (10th Cir. 2014).
5 

Mr. Montero could not transfer or remove his case from state court to 

federal court, so the federal court never obtained jurisdiction.

4

 The case 

should thus return to state court. So we vacate the dismissal and remand 

with directions for the federal district court to remand to the state district 

court. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

 

4

 After Mr. Montero purported to transfer or remove the suit, he filed a 

federal petition that included federal claims. But Mr. Montero’s right to 

transfer or remove the case is determined at the time of the purported 

transfer or removal. See Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939) 

(noting that the “right to remove” is “to be determined according to the 

plaintiffs’ pleading at the time of the petition for removal”); Pfeiffer v. 

Hartford Fire Ins. Co., 929 F.2d 1484, 1488 (10th Cir. 1991) (“[T]he 

propriety of removal is judged on the complaint as it stands at the time of 

the removal.”). Accordingly, we do not address the issues that Mr. Montero 

raises in his federal petition.