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Louis Cohen, et al. v. Terry Carter

UNITED STATES DISTRICT COURT PRIORITY SEND CENTRAL DISTRICT OF CALIFORNIA


August 31, 2011

LOUIS COHEN, ET AL.
v.
TERRY CARTER, ET AL.

The opinion of the court was delivered by: Honorable John F. Walter, United States District Judge

JS-6

CIVIL MINUTES -- GENERAL

Shannon Reilly Courtroom Deputy

ATTORNEYS PRESENT FOR PLAINTIFFS: None

None Present Court Reporter

ATTORNEYS PRESENT FOR DEFENDANTS: None

PROCEEDINGS (IN CHAMBERS): ORDER REMANDING ACTION TO LOS ANGELES COUNTY SUPERIOR COURT

On September 7, 2010, Plaintiffs Louis Cohen and Rochelle Cohen ("Plaintiffs") filed a Complaint for Unlawful Detainer against Defendant Terry Carter ("Defendant") in Los Angeles County Superior Court. On August 12, 2011, Defendant filed a Notice of Removal of Action ("Notice of Removal") alleging that this Court has jurisdiction pursuant to 28 U.S.C. § 1443(1).

Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over matters authorized by the Constitution and Congress. See Bender v. Williamsport Area School, 475 U.S. 534, 541 (1986). "Because of the Congressional purpose to restrict the jurisdiction of the federal courts on removal, the statute is strictly construed, and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Duncan v. , 76 F.3d 1480, 1485 (9th Cir. 1996) (citations and quotations omitted). There is a strong presumption that the Court is without jurisdiction unless the contrary affirmatively appears. See Fifty Associates v. Prudential Insurance Company of America, 446 F.2d 1187, 1190 (9th Cir. 1990). As the party invoking federal jurisdiction, Defendants bear the burden of demonstrating that removal is proper. See, e.g., Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992); Emrich v. Touche , 846 F.2d 1190, 1195 (9th Cir. 1988).

Defendant alleges that this Court has jurisdiction pursuant to 28 U.S.C. § 1443(1), which Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any Initials of Deputy Clerk sr law providing for the equal civil rights of citizens of the United States, or of all person within the jurisdiction thereof[.]

However, to remove a case under Section 1443(1), a defendant must satisfy the two-prong test set forth by the Supreme Court in George v. Rachel, 384 U.S. 780, 794-804 (1966) and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824-28 (1966):

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 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.

California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970) (internal citations omitted). Defendant fails to satisfy either prong. Moreover, even if Defendant could satisfy the first prong, he fails to identify any formal expression of state law that prohibits him from enforcing his civil rights in Los Angeles County Superior Court, and he fails to present any evidence that suggests that the Los Angeles County Superior Court would not enforce his civil rights in its proceedings. Patel v. Del 446 F.3d 996, 998 (9th Cir. 2006).

For the foregoing reasons, this Court lacks subject matter jurisdiction over this action. Accordingly, this action is REMANDED to Los Angeles County Superior Court for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c).

IT IS SO ORDERED.

Initials of Deputy Clerk sr

20110831

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