Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
Paul Songco Not Reported N/A
Deputy Clerk Court Reporter Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Proceedings: IN CHAMBERS - COURT ORDER
The Court is in receipt of a Notice of Removal filed by Flenoyd Hatchett ("Defendant") on February 16, 2011. (Docket No. 1.) Although Defendant has not attached a copy of plaintiff HSBC Bank USA, N.A.'s ("Plaintiff") Complaint, filed in San Bernardino County Superior Court, it appears that the Complaint asserts a single cause of action under state law for unlawful detainer. Defendant, who is appearing pro se, asserts that this Court has subject matter jurisdiction over this action pursuant to 42 U.S.C. § 1443(1).
Federal courts are of limited jurisdiction, having subject matter jurisdiction only over matters authorized by the Constitution and Congress. See, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994). A "strong presumption" against removal jurisdiction exists. Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). In seeking removal, the defendant bears the burden of proving that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).
42 U.S.C. § 1443(1) allows a defendant to remove an action "[a]against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof." Removal under section 1443(1) must satisfy a two-part test:
First, the petitioners must assert, as a defense to the prosecution, rights that are given to them by explicit statutory enactment protecting equal racial civil rights . . . . Second, petitioners must assert that the state courts will not enforce that right, and that the allegation must be supported by reference to a state statute or a constitutional provision that purports to command the state courts to ignore the federal rights.
Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006)(quoting California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970)).
Here Defendant alleges that eviction pursuant to the unlawful detainer action violates his civil rights under 42 U.S.C. § 1981 as an African American male. 42 U.S.C. § 1981 qualifies as a right which satisfies the first part of the § 1443(1) removal test. See City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 825, 86 S. Ct. 1800, 1811, 16 L. Ed. 2d 944 (1966)(noting that 42 U.S.C. § 1981 qualifies as a law providing for equal civil rights for purposes of § 1443(1)).
In order to satisfy the second part of the removal test a district court must be able to clearly predict that the state court will deny or refuse to enforce the defendant's civil rights. See id. at 828, 86 S. Ct. at 1812 ("Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court."). Defendant attempts to support removal by reference to California Civil Code § 2924, which governs procedures for mortgages and foreclosures. Defendant contends that the courts of California have been unfairly applying this statute so that African Americans "always lose" in unlawful detainer proceedings in the courts of San Bernardino County, and that Plaintiff's attorney has acted in conjunction with officers of the court to ensure eviction. Such allegations do not clearly predict that the state court will deny Defendant's rights under 42 U.S.C. § 1981. There is nothing on the face of California Civil Code § ...