Thomas McCullough, Jr. v. Nathalee Evans

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
THOMAS B MCCULLOUGH, Jr., As No. 13-55349
Special Administrator,
D.C. No. 2:12-cv-10303-MWF-E
Plaintiff - Appellee,
v. MEMORANDUM*
NATHALEE EVANS, As Named
Executor Of the Estate of Eugenia M
Ringgold,
Defendant - Appellant,
And
DORIAN CARTER,
Defendant.
In re: THE ESTATE OF EUGENIA M. No. 13-55351
RINGGOLD, decedent,
D.C. No. 2:12-cv-08433-MWF-E
THOMAS B. MCCULLOUGH, Jr.,
Special Administrator and Administrator
with Will Annexed,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Petitioner - Appellee,
v.
NATHALEE EVANS, Named Executor of
the Estate of Eugenia M. Ringgold,
decedent,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted April 9, 2015**
Pasadena, California
Before: REINHARDT, McKEOWN, and M. SMITH, Circuit Judges.
The Appellant, Nathalee Evans, appeals from the district court’s order
remanding this case to state court and from its order denying her motion to vacate
the remand order. We have jurisdiction to review the remand order pursuant to 28
U.S.C. § 1447(d) and jurisdiction to review the order denying the motion to vacate
pursuant to 28 U.S.C. § 1291. We affirm.
Evans removed this action pursuant to 28 U.S.C. § 1443.
A petition for removal under § 1443(1) must satisfy the two-part test
articulated by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 788-
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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92, 794-804, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966) and City of Greenwood,
Miss. v. Peacock, 384 U.S. 808, 824-28, 86 S. Ct. 1800, 16 L. Ed. 2d 944
(1966). “First, the petitioners must assert, as a defense to the prosecution,
rights that are given to them by explicit statutory enactment protecting equal
racial civil rights.” California v. Sandoval, 434 F.2d 635, 636 (9th Cir.1970).
“Second, petitioners must assert that the state courts will not enforce that
right, and that allegation must be supported by reference to a state statute or
a constitutional provision that purports to command the state courts to ignore
the federal rights.” Id.
Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006). The district court
correctly concluded that the case was not removable under 28 U.S.C. § 1443(1)
because Evans did not identify a state law that prohibited her from enforcing her
civil rights or “an equivalent basis . . . for an equally firm prediction that the
defendant would be ‘denied or cannot enforce’ the specified federal rights in the
state court.” Rachel, 384 U.S. at 804.
This case was not removable under 28 U.S.C. § 1443(2), which “is available
only to federal officers and to persons assisting such officers in the performance of
their official duties,” and to state officers. City of Greenwood v. Peacock, 384 U.S.
808, 815, 824 n.22 (1966). Evans did not demonstrate that she was a federal or
state officer or a person assisting such an officer in the performance of his or her
official duties.
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We lack jurisdiction to consider Evans’s contention that the district court
erred by failing to consider whether it had subject matter jurisdiction under 28
U.S.C. § 1334. See 28 U.S.C. § 1447(d); Patel, 446 F.3d at 998.
The district court did not err in denying Evans’s motion to vacate the remand
order. The district court correctly concluded that it lacked subject matter
jurisdiction over the action.
We deny Evans’s motion to strike (Dkt. No. 39), her motion for sanctions
and miscellaneous relief (Dkt. No. 45), and her motion for judicial notice (Dkt. No.
53).
We deny the Appellee’s motion for judicial notice (Dkt. No. 42) and request
for sanctions.
AFFIRMED.
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