State of Georgia v. Stringer
Filing
2
ORDER AND OPINION dismissing this action and remanding defendant's criminal proceeding to Fulton county State Court. Signed by Judge Julie E. Carnes on 7/26/14. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STATE OF GEORGIA,
Plaintiff,
v.
CIVIL ACTION NO.
1:12-cv-02623-JEC
ROBERT STRINGER,
Defendant.
ORDER & OPINION
This action is before the Court for screening pursuant to 28
U.S.C. § 1447(c) (2014).
The Court has considered the record and,
for the following reasons, concludes that the case must be DISMISSED
and the proceedings REMANDED back to Fulton County State Court.
BACKGROUND
Defendant Robert Stringer seeks to remove to this Court a
criminal proceeding pending against him in Fulton County State Court.
(Notice of Removal [1].)
The state court proceeding arises out of a
traffic stop that occurred on August 18, 2009.
See State v. Robert
Stringer, Case No. 10-cr-359751, Dkt. at Charge Info., available at
http://justice.fultoncountyga.gov/PAStMagCrtCM/CaseDetail.aspx?Case
ID=443777 (last accessed July 25, 2014).
On June 3, 2010, the State
of Georgia charged defendant with failure to use a turn signal,
improper u-turn, driving without registration or insurance, driving
with a suspended license, and acquiring a license plate for the
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purpose of concealing the identity of his vehicle–-all misdemeanors.
Id. at Dkt. at Charge Info. and Traffic Accusation Filed.
Defendant filed his Notice of Removal [1] on July 30, 2012.
It
is tough to discern the legal theory behind his allegations, but it
appears that defendant contests the status of Georgia as an injured
party and the ability of the Fulton County State Court to exercise
jurisdiction over him.
(See Notice of Removal [1] at ¶¶ 2-3.)
The Court now reviews defendant’s Notice of Removal [1] pursuant
to 28 U.S.C. § 1447(c), and concludes that defendant improperly
removed the state court proceeding; that the Court lacks jurisdiction
over defendant’s action; that defendant’s removal is moot; and that
the action may be dismissed for want of prosecution.
DISCUSSION
I.
REMOVAL OF THE STATE COURT PROCEEDING WAS IMPROPER
Federal courts are courts of limited jurisdiction, possessing
“‘only that power authorized by Constitution and statute.’” Exxon
Mobile
Corp.
v.
Allapattah
Servs.,
Inc.,
545
U.S.
546,
552
(2005)(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)).
The statute regarding removal of state court
criminal proceedings is very narrow, applying to only two types of
cases.
28 U.S.C. § 1443 (2014).
First, § 1443 permits removal of
actions “[a]gainst any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the equal
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civil rights of the United States, or of all persons within the
jurisdiction thereof.”
28 U.S.C. § 1443(1) (2014).
“[f]or
color
any
act
under
of
authority
Second, actions
derived
from
any
law
providing for equal rights, or for refusing to do any act on the
ground that it would be inconsistent with such law” may be removed to
federal court.
Id. at § 1443(2).
Neither basis for removal is available here.
First, § 1443(1)
requires that “the right relied upon as the basis for removal is a
‘right under’ a law providing for equal civil rights.”
Rachel, 384 U.S. 780, 793 (1966).
Georgia v.
To wit, the Supreme Court has
held that the “phrase ‘any law providing for . . . equal civil
rights’ must be construed to mean any law providing for specific
civil rights stated in terms of racial equality.”
Id. at 792.
Defendant makes no claim about racial equality or about being unable
to enforce a law providing for the equal rights of citizens, and
therefore could not remove the Fulton County State Court action upon
that ground.
See Marcus v. Galvez, 522 Fed. App’x 878, 880-81 (11th
Cir. 2013).
Second, § 1443(2) “applies only to acts by federal officers or
agents
and
those
authorized
to
act
for
them.”
Id.
at
880.
Defendant’s allegations all pertain to individuals involved with the
Fulton County State Court, and consequently do not serve as a basis
for removal under § 1443(2).
(See Notice of Removal [1] at ¶¶ 1-4).
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Further, defendant’s argument that the case pending against him
was properly removed to this Court “[p]ursuant to the express and
specific
language
unavailing.
of
28
(Id. at 1.)
U.S.C.
§
1441,
et
seq.”
is
similarly
That statute, by its express and specific
language, only applies to removal of civil actions.
See, e.g., 28
U.S.C. § 1441(a) (2014)(“Except as otherwise expressly provided by an
Act of Congress, any civil action brought in a State court . . . may
be removed by the defendant or the defendants, to the district court
of the United States for the district and division embracing the
place where such action is pending.”)(emphasis supplied). The Fulton
County
action
is
a
misdemeanors, no less.
criminal
case;
one
that
involves
only
Thus, removal of the state court proceeding
was not authorized by federal statute, and was therefore improper.
II.
THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THE ACTION
As
noted,
the
jurisdiction
of
federal
courts
is
limited.
Federal district courts have jurisdiction over two types of actions:
those “arising under the Constitution, laws, or treaties of the
United States”, and those with a controverted sum of more than
$75,000 that are “between citizens of different states, between U.S.
citizens and foreign citizens, or by foreign states against U.S.
citizens.”
28 U.S.C. §§ 1331-1332 (2014); Exxon Mobile Corp., 545
U.S. at 552. Defendant’s action presents neither basis for the Court
to exercise subject matter jurisdiction over it.
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A.
Federal Question Jurisdiction Does Not Exist
The first type of case over which the Court can exercise subject
matter jurisdiction is that which presents a federal question.
Federal question jurisdiction exists when “a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
“A federal
defense to a state law claim generally is insufficient to satisfy the
requirements of 28 U.S.C. § 1331.”
Stern v. Int’l Bus. Machs. Corp.,
326 F.3d 1367, 1370 (11th Cir. 2003).
Here, the State of Georgia
brought only state law misdemeanor charges against defendant.
That
action, therefore, does not arise under federal law.
Moreover, the Court has the authority to dismiss a federal
question or claim if it is “‘so attenuated and unsubstantial as to be
absolutely devoid of merit,’ or ‘frivolous.’”
Household Bank v. JFS
Grp., 320 F.3d 1249, 1254 (11th Cir. 2003)(citing Baker v. Carr, 369
U.S. 186, 199 (1962)).
As defendant’s citations to various Articles
of and Amendments to the United States Constitution and federal law
are absolutely devoid of merit and frivolous, they do not create
federal question jurisdiction.
B.
(Notice of Removal [1] at ¶ 5.)
Diversity Jurisdiction Does Not Exist
The second type of case over which the Court can exercise
jurisdiction,
those
invoking
diversity
jurisdiction,
requires
“complete diversity; every plaintiff must be diverse from every
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defendant.”
Triggs v. John Crump Toyota, 154 F.3d 1284, 1287 (11th
Cir. 1998).
Because defendant is a citizen of Georgia, diversity
jurisdiction is unavailable.
(See Notice of Removal [1] at 4, Civil
Cover Sheet.)
Defendant tries to fabricate jurisdiction by arguing that he is
a “foreign state” within the meaning of 28 U.S.C. § 1603(b) (2014).
(Id. at 1.)
Assuming arguendo that this is true, it still would not
give rise to diversity jurisdiction, as § 1332 only applies to civil
actions.1 The action pending against defendant in Fulton County State
Court, as noted, is criminal, and therefore cannot be removed under
§ 1332.
28 U.S.C. §§ 1332, 1441(a).
For the above reasons, the
Court has neither federal question nor diversity jurisdiction over
the state court proceeding, and therefore cannot entertain it.
III. DEFENDANT’S REMOVAL IS MOOT
After
numerous
pro
se
motions,
orders,
subpoenas,
and
rescheduled jury trials, defendant was arrested pursuant to a bench
1
Defendant clearly is not a foreign state under the meaning of
§ 1603(b).
His argument to the contrary ignores the conjunctive
nature of § 1603(b). While defendant is a separate legal person, he
must also be an organ of a foreign state or one of its political
subdivisions, and cannot be a citizen of a state of the United
States, to qualify as a foreign state. 28 U.S.C. § 1603(b)(1)-(3).
Defendant cannot satisfy the last two prongs, but even if he could,
“[t]here is no question that [the State of Georgia] is not a
‘citizen’ for purposes of diversity jurisdiction.” Moor v. Alameda
Cnty., 411 U.S. 693, 717 (1973). And because defendant is not a
foreign state, jurisdiction under 28 U.S.C. § 1330(a) (2014) is
precluded.
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warrant on January 25, 2013, and three and four days later pled nolo
contendere to the charges pending against him.
State v. Robert
Stringer, Case No. 10-cr-359751, Dkt. at Arrested on Warrant/RMAP Cal
and Final Disposition Entered.
Within the year, defendant had
successfully completed all the conditions of his probation, and the
Court closed his case on December 19, 2013.
Order to Close Successfully.
Id. at Dkt. at Req. for
Consequently, defendant’s removal of
the state court proceeding to this Court is now moot.
IV.
DISMISSAL FOR WANT OF PROSECUTION
Finally, the Court can dismiss defendant’s suit under Local Rule
41.3.
Defendant’s removal was the last action he took with respect
to his suit in this Court; he has shown no interest in prosecuting
his case since then, and no substantial proceedings of record have
occurred in the past two years.
LR 41.3(A)(3) N.D. Ga. (2009).
CONCLUSION
For the foregoing reasons, the Court orders that this action be
DISMISSED and that defendant’s criminal proceeding be REMANDED to
Fulton County State Court.
The Clerk of Court is directed to CLOSE
this case.
SO ORDERED, this 26th day of July, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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