Michele Clark v. Judith Kempton

FILED
NOT FOR PUBLICATION FEB 12 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELE CLARK, Erroneously Sued As No. 13-55126
Michelle R. Clark,
D.C. No. 2:12-cv-10046-PSG-JC
Plaintiff - Appellee,
v. MEMORANDUM*
JUDITH HOPKINS KEMPTON, as
personal representative for the Estate of
Kimberly Kempton; and CHARLES G.
KINNEY,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted February 10, 2015**
Pasadena California
Before: GRABER and WARDLAW, Circuit Judges, and MAHAN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
Appellants Judith Kempton, as personal representative for the Estate of
Kimberly Kempton, and Charles Kinney appeal the district court’s order
remanding this case to state court. Appellants sought removal under 28 U.S.C.
§§ 1441 and 1443. For the reasons that follow, we dismiss the appeal as it pertains
to § 1441, and we affirm the remand order as it pertains to § 1443.
1. We lack jurisdiction over this appeal to the extent that it pertains to
removal under § 1441. See 28 U.S.C. § 1447(d) ("An order remanding a case to
the State court from which it was removed is not reviewable on appeal or
otherwise, except that an order remanding a case to the State court from which it
was removed pursuant to section 1442 or 1443 of this title shall be reviewable by
appeal or otherwise."); Patel v. Del Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006)
("We lack jurisdiction to review the remand order based on § 1441." (citing 28
U.S.C. § 1447(d))).
2. The district court properly remanded this case, because Appellants have
not met the requirements for removal under § 1443. See Patel, 446 F.3d at 998–99
(identifying the necessary "two-part test"). Appellants have not identified—and
cannot identify—an "explicit statutory enactment protecting equal racial civil
rights" that is applicable here. Patel, 446 F.3d at 999 (internal quotation marks
omitted); see also Okot v. Callahan, 788 F.2d 631, 633 (9th Cir. 1986) ("Okot, as
2
the petitioner in the state court proceeding, had no power to remove his own case.
Removal is available only to defendants.").
Appeal DISMISSED in part; remand order AFFIRMED. Costs on
appeal awarded to Plaintiff-Appellee.
3