Elward v. Orlando Moreno Cano

Background

Defendant removed the case to federal court on May 21, 2024. He based removal solely on 28 U.S.C. § 1443(1), which permits removal of certain civil-rights cases. The case was initially assigned to Magistrate Judge Susan van Keulen.

On May 31, 2024, Judge van Keulen recommended that the case be remanded to state court because the federal court lacked subject-matter jurisdiction, meaning authority to hear the case. Defendant later filed an ex parte motion seeking an order to show cause why attorney Kirkman J. Hoffman should not be held in contempt, a temporary restraining order, and a preliminary injunction. The court denied that motion because Defendant had not shown a likelihood of success on the merits and could not establish federal subject-matter jurisdiction.

Removal jurisdiction

The court explained that removal under § 1443(1) requires two showings. First, the removing party must assert a defense based on rights granted by an explicit statute protecting equal racial civil rights. Second, the party must assert that the state court will not enforce those rights, supported by a state statute or constitutional provision that directs state courts to disregard the federal rights.

Judge van Keulen concluded that Defendant satisfied neither requirement. The district court independently reached the same conclusion in its earlier order denying Defendant’s motion. Although Defendant filed no formal objections to the Report and Recommendation, the court treated his motion for a temporary restraining order and an order to show cause as an objection.

Ruling

The court found the Report and Recommendation correct, well-reasoned, and thorough. Judge Beth Labson Freeman adopted the Report and Recommendation and remanded the case to state court because the federal court lacked subject-matter jurisdiction.