People of the State of California v. Metcalf Doc.

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Case 3:07-cv-01727-JM-RBB Document 2 Filed 09/07/2007 Page 1 of 2

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 THE PEOPLE OF THE STATE OF CASE NO. 07 CV 1727 JM (RBB)
CALIFORNIA,
12 ORDER SUA SPONTE
Plaintiff, REMANDING ACTION TO STATE
13 vs. COURT
14 MARIA ROSARIO METCALF,
15 Defendant.
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17 On August 31, 2007, Defendant filed a Notice of Removal of a criminal case pending against

18 her in San Diego Superior Court. In addition, Defendant apparently seeks to allege a counterclaim

19 under the “Alien Tort Claims Act.” Defendant seeks to remove the criminal proceeding pursuant to

20 28 U.S.C. §§ 1441 and 1446. The court notes that 28 U.S.C. § 1446 does not itself permit removal.

21 Rather, § 1446 sets forth the procedures for removal but does not itself permit removal.

22 Furthermore, 28 U.S.C. § 1441 only permits removal of civil actions, not criminal actions. 28

23 U.S.C. § 1441(a) (“Except as otherwise expressly provided by Act of Congress, any civil action

24 brought in a state court of which the district courts of the United States have jurisdiction, may be

25 removed by the defendant or defendants, to the district court of the United States for the district where

26 such action is pending.”). Here, not only is the action a civil one, but the court lacks original

27 jurisdiction over the state criminal matter identified by Defendant.

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 Case 3:07-cv-01727-JM-RBB Document 2 Filed 09/07/2007 Page 2 of 2

1 Even if Ms. Metcalf were to remove her criminal proceeding under 28 U.S.C. § 1443
2 (permitting removal of certain state court criminal matters), she could not prevail. To invoke federal
3 jurisdiction under § 1443, not only must a criminal prosecution be pending in state court, but the state
4 court defendant must demonstrate that he or she “is denied or cannot enforce in the courts of such
5 State a right under any law providing for the equal civil rights of citizens of the United States, or of
6 all persons within the jurisdiction thereof.” 28 U.S.C. § 1443(1). Upon careful review of the Notice
7 of Removal, Defendant fails to identify any cognizable civil right not enforceable in state court. Thus,
8 pursuant to 28 U.S.C. § 1446(c)(4), this action is summarily remanded to state court. The Clerk of
9 the Court is instructed to close the file.
10 IT IS SO ORDERED.
11 DATED: September 7, 2007
12
Hon. Jeffrey T. Miller
13 United States District Judge
14 cc: All parties
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