Hawaii Superior Court et al v. Baksheeva-Pash

Filing 4

ORDER ALLOWING DEFENDANT TO FILE AMENDED NOTICE OF REMOVAL; AND RESERVING RULING ON APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS re 1 Notice of Removal filed by Svetlana Baksheeva-Pash, re 2 MOTION for Leav e to Proceed in forma pauperis filed by Svetlana Baksheeva-Pash. Signed by JUDGE LESLIE E. KOBAYASHI on 02/17/2017. This Court GRANTS Defendant leave to file an amended notice of removal by March 10, 2017. The amended notice o f removal must comply with the terms of this Order.This Court RESERVES RULING on the Application to Proceed in District Court Without Prepaying Fees or Costs, filed February 6, 2017, pending Defendant's filing of an amended notice of removal and this Court's screening of the amended notice. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAII SUPERIOR COURT, ET
AL.,

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Plaintiffs,
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vs.
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SVETLANA BAKSHEEVA-PASHA,
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)
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Defendant.
_____________________________ )

CV 17-00052 LEK-RLP

ORDER ALLOWING DEFENDANT TO FILE AMENDED NOTICE OF REMOVAL;
AND RESERVING RULING ON APPLICATION TO PROCEED
IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
On February 6, 2017, pro se Defendant Svetlana
Baksheeva-Pasha (“Defendant”) filed her Legal Notice of Removal
(“Notice”) and an Application to Proceed in District Court
Without Prepaying Fees or Costs (“Application”).
2.]

[Dkt. nos. 1,

The Court has considered these matters without a hearing

pursuant to Rule LR7.2(e) of the Local Rules of Practice of the
United States District Court for the District of Hawai`i (“Local
Rules”).

After careful consideration of the Notice and the

relevant legal authority, this Court HEREBY CONCLUDES that the
Notice is insufficient, but this Court will allow Defendant to
file an amended notice of removal.

This Court will reserve

ruling on the Application until Defendant files her amended
notice of removal.

DISCUSSION
Defendant appears to be trying to remove a criminal
prosecution against her in the State of Hawai`i First Circuit
Court.

See Notice at 1.

28 U.S.C. § 1455 governs the procedure

to remove a criminal prosecution from state court federal court.
Section 1445(a) states:
A defendant . . . desiring to remove any criminal
prosecution from a State court shall file in the
district court of the United States for the
district and division within which such
prosecution is pending a notice of removal signed
pursuant to Rule 11 of the Federal Rules of and
containing a short and plain statement of the
grounds for removal, together with a copy of all
process, pleadings, and orders served upon such
defendant . . . in such action.
(Emphasis added.)

Defendant did not attach copies of all of the

“process, pleadings, and orders” that she was served with in the
state court prosecution that she is attempting to remove.
This Court also notes that § 1445(b) states, in
relevant part:
(2) A notice of removal of a criminal prosecution
shall include all grounds for such removal. A
failure to state grounds that exist at the time of
the filing of the notice shall constitute a waiver
of such grounds, and a second notice may be filed
only on grounds not existing at the time of the
original notice. For good cause shown, the United
States district court may grant relief from the
limitations of this paragraph.
. . . .
(4)

The United States district court in which
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such notice is filed shall examine the notice
promptly. If it clearly appears on the face of
the notice and any exhibits annexed thereto that
removal should not be permitted, the court shall
make an order for summary remand.
28 U.S.C. § 1455(b)(2), (4) (emphases added).

Without the

“process, pleadings, and orders” that Defendant was served with
in the underlying prosecution, this Court cannot determine
whether removal of the case was proper.

In addition, this Court

notes that:
There are only narrow and limited grounds
upon which a state prosecution can be removed to
federal court. Under 28 U.S.C. §§ 1442(a) and
1442a, any officer of the United States or its
courts, any officer of either House of Congress,
or any member of the U.S. armed forces that is
subject to criminal prosecution may remove such an
action that arises from acts done under color of
such office or status. See 28 U.S.C. §§ 1442(a),
1442a. . . .
Hallal v. Mardel, Case No. 1:16-cv-01432-DAD-SAB, 2016 WL
6494411, at *2 (E.D. Cal. Nov. 2, 2016).

Based on this Court’s

review of Defendant’s description of the criminal prosecution in
her Notice, it does not appear that her case falls within the
narrow and limited type of criminal cases that can be removed to
federal court.
This Court therefore CONCLUDES that Defendant’s Notice
does not establish a basis for federal jurisdiction over her
state court criminal prosecution.

However, in light of the fact

that Defendant is proceeding pro se, this Court will allow
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Defendant to file an amended notice of removal.

Defendant must:

1) attach all “process, pleadings, and orders” that she was
served with in the state court prosecution to the amended notice
of removal; and 2) describe the legal authority supporting the
removal of her state court prosecution to federal court.

If

Defendant chooses to file an amended notice of removal, she must
do so by March 10, 2017.
This Court CAUTIONS Defendant that, if she fails to
file an amended notice of removal by March 10, 2017, or if her
amended notice of removal does not establish a basis for federal
jurisdiction over her state court criminal prosecution, this
Court will summarily remand the case to the state court.
Finally, this Court also notes that the Notice
indicates that Defendant is seeking various forms of relief,
including compensatory and punitive damages.

[Notice at 15.]

It

is possible that Defendant’s Notice was not an attempt to remove
the state court criminal prosecution against her, but an attempt
to bring a civil action against the entities involved in her
prosecution.

If that was the case, Defendant must file a

complaint in a civil action against those entities.

This Court

emphasizes that it makes no findings or conclusions about the
merits of any claims Defendant may be attempting to assert
against the entities involved in her criminal prosecution.

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CONCLUSION
On the basis of the foregoing, this Court CONCLUDES
that Defendant’s Legal Notice of Removal, filed February 6, 2017,
is insufficient to establish federal jurisdiction over the
criminal prosecution against her state court.

However, this

Court GRANTS Defendant leave to file an amended notice of removal
by March 10, 2017.

The amended notice of removal must comply

with the terms of this Order.
In light of the fact that this Court has granted
Defendant leave to file an amended notice of removal, this Court
RESERVES RULING on the Application to Proceed in District Court
Without Prepaying Fees or Costs, filed February 6, 2017, pending
Defendant’s filing of an amended notice of removal and this
Court’s screening of the amended notice.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, February 17, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

HAWAII SUPERIOR COURT, ET AL. VS. SVETLANA BAKSHEEVA-PASHA; CV
17-00052 LEK-RLP; ORDER ALLOWING DEFENDANT TO FILE AMENDED NOTICE
OF REMOVAL; AND RESERVING RULING ON APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS

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