Real Property Management Colorado LLC v. Law

Filing 9

ORDER for Summary Remand granting 8 Motion to Withdraw ; denying 3 Motion for Leave to Proceed in Forma Pauperis, by Judge Lewis T. Babcock on 4/12/12.(lswsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No. 12-cv-00900-BNB
(Removal from County Court, City and County of Denver, Colorado, Real Property
Management Colorado LLC. V. Jewarode Law, et al., Case No. 12C56604)
REAL PROPERTY MANAGEMENT COLORADO LLC,
Plaintiff,
v.
JEWARODE LAW, and
ALL OTHER OCCUPANTS,
Defendants.

ORDER FOR SUMMARY REMAND

Rachel Law, on behalf of herself and her three minor children, filed pro se a
Notice of Removal (Doc. No. 2), on April 5, 2012, purportedly removing to this Court a
Complaint in Unlawful Detainer filed against her and her husband, Jewarode Law, Real
Property Management Colorado LLC. V. Jewarode Law, et al., in the County Court, City
and County of Denver, Colorado, Case No. 12C56604. On April 11, 2012, Ms. Law filed
a Motion to Withdraw the Notice of Removal (Doc. No. 8), asserting that the parties had
reached a stipulation in the state court proceeding.
The Court must construe Ms. Law’s filings liberally because she is representing
herself. 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 be the pro se litigant’s
advocate. Hall, 935 F.2d at 1110. For the reasons stated below, this action will be
remanded summarily 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). Generally, a defendant may remove “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction.” 28 U.S.C.
§ 1441(a) (2006). There are two basic statutory grounds for original jurisdiction in
federal district courts: federal-question jurisdiction under 28 U.S.C. § 1331 and diversity
jurisdiction under 28 U.S.C. § 1332. Nicodemus v. Union Pac. Corp., 318 F.3d 1231,
1235 (10th Cir. 2003). “‘The removing party has the burden to demonstrate the
appropriateness of removal from state to federal court.’” Baby C v. Price, No. 04-3299,
138 F. App’x 81, 83 (10th Cir. June 10, 2005) (unpublished) (quoting McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
Ms. Law claims that this Court has original question jurisdiction over the action
because she has asserted a counterclaim against the Plaintiff for racial discrimination,
in violation of the Fair Housing Act, as amended, 42 U.S.C. § 3601, et seq. However,
Defendant’s counterclaim does not bestow jurisdiction upon this Court. A civil action is
removable only if the plaintiff originally could have brought the action in federal court.
See 28 U.S.C. § 1441(a); Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003) (“As a
general rule, absent diversity jurisdiction, a case will not be removable if the complaint
does not affirmatively allege a federal claim.”); see also Vaden v. Discover Bank,
U.S.

, 129 S.Ct. 1262 (2009) (stating that federal jurisdiction cannot be predicated

“upon an actual or anticipated counterclaim.”). The complaint in unlawful detainer
presents a state law claim and therefore, this action was not removable from state court
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pursuant to 28 U.S.C. § 1441(a).
Furthermore, the action was not removable based on diversity of citizenship.
Section § 1441(b) of Title 28 U.S.C. provides:
a]ny civil action of which the district courts have original jurisdiction
founded on a claim or right arising under the Constitution, treaties or laws
of the United States shall be removable without regard to the citizenship or
residence of the parties. Any other such action shall be removable only if
none of the parties in interest properly joined and served as defendants is
a citizen of the State in which such action is brought.
28 U.S.C. § 1441(b) (emphasis added). It is not clear from the state court pleadings
whether the Defendants are citizens of the State of Colorado, or if the Plaintiff and
Defendants are diverse from each other. However, even if the statutory diversity
requirements are met, federal diversity jurisdiction arises only if the amount in
controversy meets or exceeds $75,000, without regard to any counterclaim filed by the
Defendants. See 28 U.S.C. § 1332(b).
The complaint in unlawful detainer alleges that “[t]he amount sought in this action
does not exceed $15,000.” (Doc. No. #, at 1). Because Defendant Rachel Law
requested the removal, she must identify allegations in the notice of removal
establishing that the amount in controversy exceeds $75,000. Baby C, 138 F. App’x at
83; see also Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995). There are no
allegations in the notice of removal to counter Plaintiff’s assertion that the amount
sought by Plaintiff is less than $15,000. Defendant thus has failed to demonstrate that
the amount in controversy exceeds $75,000.00. Consequently, this Court lacks
jurisdiction over the action pursuant to 28 U.S.C. § 1332.
Ms. Law also suggests that removal is appropriate pursuant to 28 U.S.C.
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§ 1443(1). The requirements for removal under § 1443(1) are narrow and well-defined.
See Davis v. Glanton, 107 F.3d 1044, 1045 (3d Cir. 1997). The removal petitioner must
allege that the right denied “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 28 U.S.C. § 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.’”
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. Law has failed to
provide the court with specific factual allegations regarding her inability to enforce her
federal civil rights in the state court proceeding. Therefore, removal pursuant to
§ 1443(1) is not appropriate.
In sum, 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

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ORDERED that this action is remanded summarily to the County Court, City and
County of Denver 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 County Court, City and County of Denver, Colorado. It is
FURTHER ORDERED that the Motion to Withdraw (Doc. No. 8) is granted in
accordance with the summary remand order above. It is
FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 is denied as moot. It is
DATED at Denver, Colorado, this

12th

day of

April

, 2012.

BY THE COURT:

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

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