ACL Company LLC v. Espinoza ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10321
c/w 01-10334
Conference Calendar
IN RE: JOHN T. ESPINOZA,
Petitioner,
-------------------
Petition for Writ of Mandamus
to the United States District Court
for the Northern District of Texas
____________________
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No. 01-10334
____________________
ACL COMPANY, LLC,
Plaintiff-Appellee
v.
JOHN T. ESPINOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CV-152
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John T. Espinoza seeks a writ of mandamus vacating the
district court’s order remanding the case to the state court and
ordering the district court to conduct a trial of the matter.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Espinoza is seeking the same relief in his appeal from the
district court’s order remanding the case to the state court.
Because he has other adequate means to attain the requested
relief, his petition for mandamus is DENIED. See In re Willy,
831 F.2d 545, 549 (5th Cir. 1987).
Espinoza’s petition for removal asserted that he was
entitled to remove the case pursuant to 28 U.S.C. § 1443(1).
Because the pleadings filed at the time the petition for removal
was filed did not reflect that Espinoza was being deprived of his
civil rights based on his race, the district court did not have
subject matter jurisdiction pursuant to 28 U.S.C. § 1443(1). See
Johnson v. Mississippi, 421 U.S. 213, 219 (1975).
Nor did the pleadings reflect that the district court had
jurisdiction pursuant to 28 U.S.C. § 1443(2) because the
pleadings did not reflect that the state officials had violated
any law providing for equal rights or that there was “a colorable
conflict between state and federal law.” Alonzo v. City of
Corpus Christi, 68 F.3d 944, 946 (5th Cir. 1995). Therefore, the
case was not properly removed to the federal court.
An order of removal is generally not reviewable on appeal or
otherwise. 28 U.S.C. § 1447(d). However, 28 U.S.C. § 1447(d)
provides an exception for “an order remanding a case to the State
court from which it was removed pursuant to section 1443.”
Because the pleadings on file at the time of the removal did not
meet the jurisdictional prerequisites of 28 U.S.C. § 1443, this
court lacks jurisdiction to review the appeal. The appeal is
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c/w
01-10334
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thus DISMISSED for lack of jurisdiction. The petition for
mandamus is DENIED.