King v. Ziegler , 138 F. App'x 60 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
June 7, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
JANICE LYNN KING f/k/a Ziegler,
Plaintiff-Appellant,
v.
PAUL JOSEPH ZIEGLER; DAVID E.
BRUNS, in his official capacity as
Shawnee County District Court Judge
No. 04-3502
of Division 12; EVELYN Z. WILSON,
(D.C. No. 04-CV-4158-SAC)
in her official capacity as Shawnee
(D. Kan.)
County District Court Judge of
Division 5; LORI L. YOCKERS, in
her official capacity as Administrative
Hearing Officer of Shawnee County
District Court; SHERRI KELLER, in
her official capacity as Shawnee
County District Court Case Manager ,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Before EBEL, McKAY and HENRY, Circuit Judges.
Plaintiff-Appellant Janice Lynn King appeals 1 the district court’s decision
remanding this case to Kansas state court and requiring King to pay $200 in
attorney fees. Defendant-Appellee Paul Joseph Ziegler has requested that this
court dismiss this appeal. We GRANT that motion and DISMISS King’s appeal
because we lack jurisdiction to review the remand order. We do have jurisdiction,
however, to AFFIRM the fee award.
King commenced this divorce action in Kansas state court in 1999. In
November 2004, she removed the divorce action to federal district court and
sought to add several state-court officials as “third-party defendants.” (R. doc.
1.) The district court, however, remanded this case back to state court, holding
that the federal court lacked jurisdiction over King’s divorce action and that King
had not followed proper removal procedures. (R. doc. 10 at 3-5.)
“An order remanding a case to the State court from which it was removed is
not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). Nonetheless,
“[a]ppellate review is barred by § 1447(d) only when the district court remands on
grounds permitted by § 1447(c).” Topeka Housing Auth. v. Johnson, 404 F.3d
1245, 1248 (10th Cir. 2005) (quotation omitted). “Section 1447(c) specifically
1
We grant King’s motion to proceed on appeal in forma pauperis. See
28 U.S.C. § 1915(a)(1).
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allows district courts to order remand if there has been a ‘defect in removal
procedure,’ or if it determines, at any time prior to final judgment, that it ‘lacks
subject matter jurisdiction.’” Kennedy v. Lubar, 273 F.3d 1293, 1297 (10th Cir.
2001) (quoting 28 U.S.C. § 1447(c)). The district court remanded on both these
grounds. (R. doc. 10 at 3-5.) Therefore, Ҥ 1447(d) absolutely prohibits appellate
review of the order, and we adhere firmly to this prohibition.” Kennedy, 273 F.3d
at 1297.
In removing this divorce action to federal court, King invoked, among other
statutes, 28 U.S.C. § 1443. 2 (R. doc. 1 at 1.) This court would have jurisdiction
to review “an order remanding a case to the State court from which it was
removed pursuant to section 1443.” 28 U.S.C. § 1447(d); see also First Union
Mortgage Corp. v. Smith, 229 F.3d 992, 994 (10th Cir. 2000). “The Supreme
Court has established a two part test for section 1443 removal petitions in
2
In relevant part, § 1443 provides that
[a]ny of the following civil actions or criminal prosecutions[]
commenced in a State court may be removed by the defendant to the
district court of the United States for the district and division
embracing the place wherein it is pending:
(1) Against any person who is denied or cannot
enforce in the courts of such State a right under any law
providing for the equal civil rights of citizens of the
United States, or of all persons within the jurisdiction
thereof.
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Johnson v. Mississippi, 421 U.S. 213 . . . (1975).” Colorado v. Lopez, 919 F.2d
131, 132 (10th Cir. 1990).
First, it must appear that the right allegedly denied the removal
petitioner arises under a federal law providing for specific civil
rights stated in terms of racial equality. A state court defendant’s
claim that prosecution and conviction will violate rights under
constitutional or statutory provisions of general applicability or under
statutes not protecting against racial discrimination is insufficient for
removal. Second, it must appear that the removal petitioner is denied
or cannot enforce the specified federal rights in the courts of [the]
State.
Id. (quotations, citations omitted). We agree with the district court that King has
failed to satisfy the requirements for removal under section 1443. Thus, this
court lacks jurisdiction to consider King’s appeal from the remand order.
This court does have jurisdiction to review the district court’s decision to
require King to pay Ziegler’s counsel $200 in attorney fees and costs expended in
defending the removal (R. doc. 10 at 5-6.). See Johnson, 404 F.3d at 1248.
Section 1447(c) provides that “[a]n order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as
a result of the removal.”
This court reviews the district court’s decision to grant attorney fees and
costs for an abuse of discretion and the court’s underlying legal analysis de novo.
See Johnson, 404 F.3d at 1248. “No showing of bad faith is necessary to justify
the award. What is required to award fees, however, is a showing that the
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removal was improper ab initio.” Id. (quotation omitted). In this case, removal
was improper. See id. The district court did not abuse its discretion in awarding
Ziegler’s attorney $200 in fees and costs. See id.We, therefore, AFFIRM the district court’s award of fees. We otherwise
grant Ziegler’s motion and DISMISS the appeal. King’s motions to supplement
the record are DENIED. All other pending motions, including King’s requests for
contempt citations, a restraining order (Aplt. Reply Br. at 14-15.), and stays of the
state-court proceedings are DENIED as moot.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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