Lafortune v. Krista

Filing 3

ORDER for Summary Remand. ORDERED that this action is remanded summarily to the Eighteenth Judicial District in Elbert County, Colorado. FURTHER ORDERED that the clerk of this Court shall mail a certified copy of this order to the clerk of the Eighteenth Judicial District in Elbert County, Colorado, by Judge Lewis T. Babcock on 3/1/12. (lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00522-BNB
(Removal from Elbert County District Court, In Re the Marriage of Michael LaFortune
and Lora Krista, Case No. 2001DR76)
MICHAEL LAFORTUNE,
Plaintiff,
v.
LORA KRISTA,
Defendant.

ORDER FOR SUMMARY REMAND

Defendant, Lora Krista, has filed pro se a document titled “Notice of Removal.”
Ms. Krista seeks the removal to this Court of Case No. 2001DR76, which appears to be
a dissolution of marriage case filed in the Eighteenth Judicial District in Elbert County,
Colorado.
The Court must construe the notice of removal liberally because Ms. Krista is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, this action will be summarily remanded to the state court.
“Under 28 U.S.C. § 1441 a defendant in state court may remove the case to
federal court when a federal court would have had jurisdiction if the case had been filed
there originally.” Topeka Housing Authority v. Johnson, 404 F.3d 1245, 1247 (10th Cir.

2005). “The removing party has the burden to demonstrate the appropriateness of
removal from state to federal court.” Baby C v. Price, 138 F. App’x 81, 83 (10th Cir.
2005).
The Court has reviewed the notice of removal and finds that it is deficient. Ms.
Krista has failed to provide “a short and plain statement of the grounds for removal,
together with a copy of all process, pleadings, and orders served upon such defendant
or defendants in such action.” 28 U.S.C. § 1446(a).
With respect to the jurisdiction question, Ms. Krista attempts to remove from the
state court a domestic case involving the dissolution of her marriage. As a general rule,
the federal courts do not have jurisdiction over such matters because “‘[t]he whole
subject of the domestic relations of husband and wife . . . belongs to the laws of the
States and not the law of the United States.’” Rose v. Rose, 481 U.S. 619 (1987)
(quoting In Re Burrus, 136 U.S. 586, 593-94 (1890)). However, Ms. Krista asserts that
the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1443. Notice at 2.
Although § 1443 authorizes the removal to federal court of certain civil rights cases, the
Court finds that the instant action may not be removed pursuant to § 1443.
The two requirements for removal under § 1443(1) are narrow and well-defined.
See Davis v. Glanton, 107 F.3d 1044, 1045 (3d Cir. 1997). “First, it must appear that
the right allegedly denied the removal petitioner arises under a federal law ‘providing for
specific civil rights stated in terms of racial equality.’” Johnson v. Mississippi, 421 U.S.
213, 219 (1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). “A state court
defendant’s claim that ‘prosecution and conviction will violate rights under constitutional
or statutory provisions of general applicability or under statutes not protecting against
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racial discrimination’ is insufficient for removal.” Colorado v. Lopez, 919 F.2d 131, 132
(10th Cir. 1990) (quoting Johnson, 421 U.S. at 219)). Ms. Krista fails to demonstrate
that she has been denied any rights based on her race. Notice at 2. At most, she
asserts violates of federal laws of general applicability, which are not sufficient to qualify
for removal under § 1443(1).
“Second, it must appear . . . that the removal petitioner is ‘denied or cannot
enforce’ the specified federal rights ‘in the courts of [the] State.’” Johnson, 421 U.S. at
219 (quoting 28 U.S.C. § 1443(1)). The Supreme Court explained this requirement as
follows:
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.
City of Greenwood, Miss., v. Peacock, 384 U.S. 808, 828 (1966). This requirement
must be supported by specific factual allegations. See generally 14A Charles Alan
Wright et al., Federal Practice & Procedure § 3728 (2d ed. 1985). Ms. Krista has failed
to provide the court with specific factual allegations regarding her inability to enforce her
constitutional rights in the state court divorce proceeding. Therefore, removal pursuant
to § 1443(1) is not appropriate.
Removal pursuant to 28 U.S.C. § 1443(2) also is not appropriate. Section
1443(2) “confers a privilege of removal only upon federal officers or agents and those
authorized to act with or for them in affirmatively executing duties under any federal law
providing for equal civil rights.” City of Greenwood, 384 U.S. at 824. Ms. Krista asserts
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that she is “a person assisting a federal officer in the performance of official duties
providing for equal civil rights.” Notice at 1. However, Ms. Krista provides no evidence
demonstrating that she assisted a federal officer in performing official duties providing
for equal rights. See City of Greenwood, 384 U.S. at 824. Ms. Krista’s unsupported
and conclusory allegation is insufficient to provide grounds for removal pursuant to 28
U.S.C. § 1443(2)
Therefore, because it clearly appears on the face of the Notice of Removal and
attached exhibits that removal of this action should not be permitted, the action will be
remanded summarily to the state court pursuant to 28 U.S.C. § 1446(c)(4).
Accordingly, it is
ORDERED that this action is remanded summarily to the Eighteenth Judicial
District in Elbert County, Colorado. It is
FURTHER ORDERED that the clerk of this Court shall mail a certified copy of
this order to the clerk of the Eighteenth Judicial District in Elbert County, Colorado.
DATED at Denver, Colorado, this 1st

day of

March

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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