Thompson et al v. Charleston Manor, LLC et al

Filing 7

MEMORANDUM OPINION AND ORDER Adopt Report and Recommendation 3 Report and Recommendation. Greens Objection to the R&R [Doc. No. 4 ] is OVERRULED. This matter is REMANDED to St. Louis County District Court for lack of subject matter jurisdiction. (Written Opinion) Signed by Judge Susan Richard Nelson on 4/12/2018. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Lauren
Doreen
Thompson,
Cole
Christopher Miller, Jon Michael Czech,
Natassja Fern Sheils, and Scott Owen
Scullin,

File No. 18-cv-00114 (SRN/LIB)

Plaintiffs,
MEMORANDUM OPINION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Charleston Manor, LLC, Rosemont
Property Management Company, Inc.,
Cedar Grove, LLC, and Carl Green,
Assignee Doing Business as Signature
Capital,
Defendants.

Sara Jane Baldwin, Legal Aid Service of Northeastern MN, 424 W. Superior Street,
Suite 302, Duluth, MN 55802, for Plaintiffs.
Carl Green, 601 Carlson Parkway #1050, Minnetonka, MN 55305, pro se, for Defendants.

SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Report and Recommendation (“R&R”) of
United States Magistrate Judge Leo I. Brisbois dated January 25, 2018 [Doc. No. 3]. The
magistrate judge recommended that this action be remanded to the Minnesota State District
Court of St. Louis County for lack of subject matter jurisdiction. Defendant Carl Green
(“Green”) timely filed an Objection [Doc. No. 4] to the R&R. For the reasons stated herein,
this Court overrules Green’s Objection, adopts the R&R in its entirety, and remands this
action back to state court.

I.

BACKGROUND
A. Factual Background
On January 12, 2018, Green filed a Notice of Removal in this Court. (See Notice of

Removal [Doc. No. 1].) Green did not attach a copy of the state court complaint, or of the
“process, pleadings, and orders served upon” Green as required by 28 U.S.C. § 1446. (See
id.) Green asserts that he is removing under 28 U.S.C. § 1443(1), and his purported reason
for removal is that “[b]oth the plaintiff[s] and the state court refuse to recognize [him] as an
Assignee under the law of assignment in this action and refused to hear motion to
consolidate to address said issue . . . .” (Id. at 1.) He further alleges that he removed the
action to federal court because he “is unable to vindicate his federal rights were [sic] it can
be clearly predicted by reason of the operation of this pervasive and ‘explicit state or
federal’ law [that he is not an LLC and he needs not be represented by an attorney and
Green’s rights by assignment] will inevitably be denied by the very act of bringing the
defendant to trial in the state court . . . .” (Id. ¶ 3 (alterations in original).)
Because Green did not attach anything to his Notice of Removal, this Court is
without context for Green’s assertions. The Court, however, is aided by a letter recently
filed by Plaintiffs’ counsel. (See Apr. 10 Letter to the District Judge (“Apr. 10 Letter”)
[Doc. No 6].) Plaintiffs’ counsel asserts that the underlying action is a “Rent Escrow” matter
that was filed in state court on November 1, 2017. (Id. at 1.) Plaintiffs’ counsel alleges that
Green is Plaintiffs’ landlord, and that Green removed the matter to federal court “because he
refused to comply with Minnesota State law, which requires corporate entities to be
represented by an attorney in all court filings and proceedings.” (Id.)
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B. Procedural Posture
On January 25, 2018, the magistrate judge issued an R&R sua sponte raising the
issue of subject matter jurisdiction and recommending that this Court remand the case back
to state court. The magistrate judge first found that “[i]t appear[ed] from the documents Mr.
Green has filed with this Court that he is not a party to the underlying Minnesota state court
case,” and, as such, he could not remove the case pursuant to 28 U.S.C. § 1443(1). (R&R at
2.) Additionally, the magistrate judge found that even assuming, arguendo, that Green was
indeed a defendant in the underlying state court action, he “ha[d] failed to show that he is
entitled to removal under 28 U.S.C. § 1443(1).” (Id.) The magistrate judge found that Green
had not complied with the requirement that he “must show that he relies upon a law
providing for equal civil rights stated in terms of racial equality, and that he is denied or
cannot enforce that right in state court.” (Id. at 2–3 (quoting Green v. Green, No. 13-cv-332
(SRN/LIB), 2013 WL 5503722, at *2 (D. Minn. Oct. 3, 2013).) Moreover, the magistrate
judge found that Green had also failed to comply with the procedural requirements set forth
in the removal statute, 28 U.S.C. § 1446. (Id. at 3.) The magistrate judge found that “Mr.
Green has not filed with this Court a copy of all process, pleadings, and orders served upon
him in the State Court action as required in [§ 1446] subsection (a), nor has he demonstrated
that the removal is timely under [§ 1446] subsection (b).” (Id. at 4.)
On February 8, 2018, Green filed his Objection to the R&R. (See Obj.) Green
contends that removal was proper because his case falls “under the exception and two prong
tests in [Johnson v. Mississippi, 421 U.S. 213, 219–20 (1975)].” (Id. at 1.) He alleges that
his case is an “unusual case where an equivalent basis can be shown for an equally firm
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prediction that the defendant would be denied or cannot enforce the specified federal rights
in state court.” (Id.) So far as the Court can discern, the “rights” Green claims he is being
denied are those related to assignments. (Id.) He contends that “the law of assignment
applies, and reliance is ‘upon (this) law providing for equal civil rights stated in terms of
racial equality.’” (Id.) Green further contends that “all his claims are being barred by the St.
Louis County District Court, more than six claims, and Green has tried to consolidate those
claims and they are still being barred by the Chief Judge.” (Id.) He also contends that “[t]he
documents to meet the procedural requirements are being filed separately.” (Id. at 2.)
Although Plaintiffs did not file a response to Green’s Objection, the letter that
Plaintiffs’ counsel submitted asks this Court to “remand the matter back to state court a[s]
soon as possible.” (Apr. 10 Letter at 1.)
II.

DISCUSSION
The district court must undertake an independent, de novo review of those portions

of the R&R to which a party objects and “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
see also D. Minn. LR 72.2(b)(3).
This court has conducted a full, de novo review of the files and records, and like the
magistrate judge, concludes that this case must be remanded to state court for lack of
subject matter jurisdiction. Assuming Green is a defendant in the state court action, under
28 U.S.C. § 1443—the statute on which Green bases his removal—Green must show that
he relies upon a law providing for equal civil rights stated in terms of racial equality, and
that he is denied or cannot enforce that right in state court. See 28 U.S.C. § 1443(1);
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Georgia v. Rachel, 384 U.S. 780, 800 (1966) (“Removal is warranted only if it can be
predicted by reference to a law of general application that the defendant will be denied or
cannot enforce the specified federal rights in the state courts. A state statute authorizing
the denial affords an ample basis for such a prediction.”). Removal might also be
justified, even in the absence of such a law, if an “equivalent basis could be shown for an
equally firm prediction that the defendant would be ‘denied or cannot enforce’ the
specified federal rights in the state court.” Georgia, 384 U.S. at 804.
Green has not met the stringent requirements of 28 U.S.C. § 1443. In his Notice of
Removal, Green simply asserts that “[t]he state court is refusing to acknowledge or hear
Green as an assignee under the law of assignment, including in actions, motions and
motion to consolidate this issue for hearing; a right enjoyed by white citizens.” (Notice of
Removal ¶ 3.) His Objection relies on the same allegations. (See Obj.) Nowhere in these
documents, however, does Green show, as necessary under § 1443, that he is being
denied a right of racial equality. United States ex rel. Sullivan v. Missouri, 588 F.2d 579,
580 (8th Cir. 1978). “Section 1443 applies only to denials of specific rights of racial
equality and not to the whole gamut of constitutional rights.” Id. Simply put, despite his
conclusory statement that he is being denied a right “enjoyed by white citizens,” (Notice
of Removal at 2), Green’s “contentions have nothing to do with racial equality,” Varney
v. Georgia, 446 F.2d 1368, 1369 (5th Cir. 1971).
Green’s citation to Johnson v. Mississippi is of no avail. (See Obj. at 1.) That case
explained that “a removal petition under 28 U.S.C. § 1443(1) must satisfy a two-pronged
test.” 421 U.S. at 219. “First, it must appear that the right allegedly denied the removal
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petitioner arises under a federal law ‘providing for specific civil rights stated in terms of
racial equality.’” Id. (quoting Georgia, 384 U.S. at 792). “Second, it must appear, in
accordance with the provisions of § 1443(1), that the removal petitioner is ‘denied or
cannot enforce’ the specified federal rights ‘in the courts of (the) State.’” Id. (quoting 28
U.S.C. § 1443). As described above, Green does not meet these requirements.
This “[C]ourt has a special obligation to consider whether it has subject matter
jurisdiction in every case. This obligation includes the concomitant responsibility to
consider sua sponte [the court’s subject matter] jurisdiction . . . where . . . [the court]
believe[s] that jurisdiction may be lacking.” Hart v. United States, 630 F.3d 1085, 1089
(8th Cir. 2011) (alterations in original) (internal citations and quotations omitted). For the
reasons set forth above and as explained by the magistrate judge, this Court lacks subject
matter jurisdiction over this case and must remand it to state court. See Hormel
HealthLabs, Inc. v. Ventura Foods, LLC, No. 04-cv-4695 (JNE/JGL), 2004 WL 2526423,
at *1 (D. Minn. Nov. 4, 2004) (“A district court should sua sponte remand a case any
time it determines that it lacks subject matter jurisdiction.”). 1
III.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED THAT:
1. Magistrate Judge Brisbois’s R&R of January 25, 2018 [Doc. No. 3] is
ADOPTED;
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This Court need not address Green’s contention that he is “separately” filing the
documents required by 28 U.S.C. § 1446. (Obj. at 2.) As explained, this case must be
remanded because this Court lacks subject matter jurisdiction, not simply because Green
failed to comply with the procedural requirements for removal.
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2. Green’s Objection to the R&R [Doc. No. 4] is OVERRULED; and
3. This matter is REMANDED to St. Louis County District Court for lack of
subject matter jurisdiction.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: April 12, 2018

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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