Philadelphia v. Women's Health Inc , 53 F. App'x 198 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-13-2002
Philadelphia v. Women's Health Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1302
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"Philadelphia v. Women's Health Inc" (2002). 2002 Decisions. Paper 728.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1302
CITY OF PHILADELPHIA
v.
WOMEN’S HEALTH, INC.;
EMERITA T. GUESON, OFFICER
Women’s Health, Inc., and
Emerita T. Gueson, M.D.,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 01-06133)
Honorable R. Barclay Surrick, District Judge
Submitted under Third Circuit LAR 34.1(a)
November 8, 2002
BEFORE: MCKEE and GREENBERG, Circuit Judges,
and LIFLAND, District Judge*
(Filed: November 13, 2002)
*Honorable John C. Lifland, Senior Judge of the United States District Court for the
District of New Jersey, sitting by designation.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Women’s Health, Inc. and Emerita T. Gueson, M.D. appeal from an order entered
January 28, 2002, remanding this case to the Court of Common Pleas of Philadelphia
County in accordance with the district court’s memorandum opinion of January 25, 2002.
We conclude that except to the extent that appellants removed the matter to the district
court under 28 U.S.C. § 1443(1) we do not have jurisdiction. Insofar as appellants removed
the matter under section 1443(1) we will affirm.
This is what happened. The City of Philadelphia initiated these proceedings in the
Court of Common Pleas by bringing what on its face was a routine tax collection action
under the Philadelphia Code. The appellants removed the matter to the district court
pursuant to 28 U.S.C. § 1443(1) asserting that they “are being subjected to continuous and
continuing violations of their Procedural Due Process, Equal Protection Clause and
Immunities as provided for by the 14th Amendment of the United States Constitution giving
rise to violation of Defendants’ civil rights under 42 U.S.C. § 1983.” Appellants also
removed the matter under 28 U.S.C. § 1441 on the theory that it “arises under 42 U.S.C. §
1983 and, by reason of being a retaliatory action designed to deter Defendants from
pursuing her Constitutional rights and Civil rights.” As a third basis for removal the
appellants removed the matter under 28 U.S.C. § 1651. At the same time appellants filed a
counterclaim against the City and certain of its employees under 42 U.S.C. §§ 1983 and
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1985 and state common and statutory law.
The City reacted to the removal by filing a motion to remand which the district
court granted by its memorandum opinion dated January 25, 2002. After setting forth the
background of the case, the district court quoted 28 U.S.C. § 1443(1) and explained that, as
set forth in Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 1790 (1966), section
1443(1) has a limited application and was not applicable here. The court then held that the
matter could not properly be removed under section 1441 as the parties were not of diverse
citizenship and the complaint was not predicated on federal law. Moreover, the court stated
that appellants’ counterclaim could not give a basis for removal, citing Bell Atlantic
Mobile, Inc. v. Zoning Board of Butler Township, 138 F. Supp. 2d 668, 675 (W.D. Pa.
2001). Finally, the court held that section 1651 did not give a basis for removal. Thus, the
court signed an order for remand and this appeal followed. We exercise plenary review on
this appeal. See Bradgate Assocs., Inc. v. Fellows, Read & Assocs., Inc., 999 F.2d 745, 749
(3d Cir. 1993).
We make the following disposition of this appeal. To the extent that appellants
removed the case under sections 1441 and 1651 we do not have jurisdiction to review the
remand order as the district court held that it did not have jurisdiction. See 28 U.S.C. §
1447(d); Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1210-11 (3d Cir. 1991). To the
extent that the district court remanded the matter notwithstanding appellants’ reliance on 28
U.S.C. § 1443(1) we will affirm substantially for the reasons it set forth.
The order of January 28, 2002, will be affirmed.
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TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Morton I. Greenberg
Circuit Judge
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