Akhlaghi v. Berry

• Decision Date: 11 December 2003
• Docket Number: No. 03-2485-JWL.,03-2485-JWL.
• Parties: Amir AKHLAGHI, Plaintiff, v. Tony BERRY and Julie Berry, Defendants.
• Court: U.S. District Court — District of Kansas

294 F.Supp.2d 1238

Amir AKHLAGHI, Plaintiff, v. Tony BERRY and Julie Berry, Defendants.

No. 03-2485-JWL.

United States District Court, D. Kansas.

December 11, 2003.

Charles Ball, Kansas City, KS, Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland Park, KS, for Plaintiff/Counter Defendant.

Constance L. Shidler, Smithyman & Zakoura, Chtd., Overland Park, KS, for Plaintiff.

Gregory V. Blume, Overland Park, KS, for Defendants/Counter Claimants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff filed multiple actions against defendants in state court seeking unpaid rent and possession of certain rental property owned by plaintiff. Defendants asserted counterclaims against plaintiff for conversion, abuse of process, malicious prosecution, unlawful interference with their right to lease real property in violation of 42 U.S.C. § 1982 and racial discrimination in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. Thereafter, defendants, based on their claims asserted under § 1982 and the Fair Housing Act, removed the case to federal court pursuant to 28 U.S.C. § 1443. This matter is now before the court on plaintiff's motion to dismiss, to remand, or to sever and remand (doc. #4). As set forth in more detail below, the court concludes that removal was improper under § 1443 and thus remands this case to state court.

I. Background

In September 2002, defendants Tony and Julie Berry executed an agreement with plaintiff Amir Akhlaghi whereby defendants agreed to rent a house owned by plaintiff in Leawood, Kansas. In February 2003, plaintiff filed a petition for rent and possession against defendants in the Limited Actions division of the District Court of Johnson County, Kansas seeking unpaid rent and late fees incurred from October 2002 through February 2003, possession of the property, forfeiture of defendants' security deposit, and $1000.00 as an additional deposit. The parties settled this lawsuit and the action was dismissed without prejudice in early March 2003.

In April 2003, plaintiff filed a petition for forcible detainer against defendants seeking possession of the property and unpaid rent and late fees for March and April 2003. According to defendants, the parties settled the suit the day before trial when defendants paid to plaintiff the amounts owed to him through May 2003. Defendants further assert that plaintiff agreed to dismiss the suit in light of defendants' payment and that plaintiff assured them that they did not need to appear for trial the next day. When defendants, relying on plaintiff's assertions, did not appear for trial, plaintiff sought and obtained a default judgment and writ of restitution against them. Defendants thereafter moved to set aside the default judgment based on the parties' prior agreement and the state court granted the motion and also set aside the writ of restitution. Thereafter, the state court dismissed plaintiff's petition based on its finding that plaintiff had accepted from defendants the amounts owed to him.

On July 1, 2003, plaintiff filed another petition for rent and possession against defendants, this time seeking unpaid rent and late fees for June 2003, possession of the property, forfeiture of defendants' security deposit, and an additional deposit of $1000.00. The petition was dismissed without prejudice after plaintiff's then-counsel failed to appear for trial. Plaintiff appealed the decision of the court in the Limited Actions division and that appeal is currently pending in the District Court of Johnson County.

In August 2003, plaintiff filed his fourth petition against defendants in the Limited Actions division-a petition for peaceable entry and forcible detainer. In his petition, plaintiff sought unpaid rent and late fees for June 2003 (the subject of the third action currently on appeal), unpaid rent and late fees for July and August 2003, as well as possession of the property. In September 2003, defendants filed an answer and counterclaim to plaintiff's petition, asserting state law claims of conversion, abuse of process and malicious prosecution as well as federal claims for unlawful interference with their right to lease real property in violation of 42 U.S.C. § 1982 and racial discrimination in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. Defendants then removed the case to this court pursuant to 28 U.S.C. § 1443.

II. Discussion

In his motion, plaintiff moves to dismiss defendants' counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In the alternative, plaintiff moves to remand the case on the grounds that defendants' removal was improper in the first instance. Finally, plaintiff moves, as an alternative, to sever and remand his claims for possession and unpaid rent. Thus, the court is essentially confronted with two motions-one to dismiss the case on the merits and one to remand the case to state court. In such circumstances, the Tenth Circuit has cautioned that the "better practice [is] to rule first on the motion to remand and if granted to ... sen[d] the motion to dismiss back to the state court." See In re Bear River Drainage Dist., 267 F.2d 849, 851 (10th Cir.1959); accord 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3739 at 423 (3rd ed.1998). Thus, the court addresses plaintiff's motion to the extent it seeks to remand the case to state court and, because the court concludes that remand is required as removal was improper under 28 U.S.C. § 1443, it declines to address the merits of plaintiff's motion to dismiss. See 28 U.S.C. § 1447(c); International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 87, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991) ("Since the district court had no original jurisdiction over this case, a finding that removal was improper deprives that court of subject matter jurisdiction and obliges a remand under the terms of § 1447(c)." (internal citation omitted) (superseded by statute on other grounds)).

In their notice of removal, defendants expressly assert that removal is proper pursuant to 28 U.S.C. § 1443.¹ In pertinent part, section 1443 provides:

Any 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. ...

28 U.S.C. § 1443 (1994). The United States Supreme Court has established a two part test for section 1443 removal petitions. State of 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.'" Id. (quoting Johnson v. Mississippi, 421 U.S. 213, 219, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966))). Second, it must appear "that the removal petitioner is `denied or cannot enforce' the specified federal rights `in the courts of [the] State.'" Id. (quoting Johnson, 421 U.S. at 219, 95 S.Ct. 1591) (quoting 28 U.S.C. § 1443(1) (1988)).

In their briefs, the parties seem to assume that defendants' claims of race discrimination under 42 U.S.C. § 1982 and the Fair Housing Act are sufficient to satisfy the first prong of the test articulated by the Supreme Court in Georgia v. Rachel and reiterated in Johnson v. Mississippi. See Water's Edge Habitat, Inc. v. Pulipati, 837 F.Supp. 501, 505 (E.D.N.Y. 1993) (claims under the Fair Housing Act alleging racial discrimination in housing are entirely consistent with mandate of Georgia v. Rachel); Northside Realty Associates, Inc. v. Chapman, 411 F.Supp. 1195, 1198 (N.D.Ga.1976) (claims of racial discrimination under Fair Housing Act satisfy first prong of section 1443).

Thus, the court proceeds to the second prong of the test which requires a showing that defendants will be "denied or cannot enforce" the specific federal right in the state court. As explained by the Supreme Court, this particular aspect of section 1443 "normally requires that the denial be manifest in a formal expression of state law, such as a state legislative or constitutional provision." See Johnson v. Mississippi, 421 U.S. 213, 219, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975) (quoting Georgia v. Rachel, 384 U.S. at 803, 86 S.Ct. 1783) (citation omitted). By way of example, the Supreme Court has explained that "a state enactment, discriminatory on its face, so clearly authorized discrimination that it could be taken as a suitable indication that all courts in that state would disregard the federal right of equality with which the state enactment was precisely in conflict." Georgia v. Rachel, 384 U.S. at 804, 86 S.Ct. 1783. Moreover, as the Supreme Court has cautioned, the requirement that the denial of federal rights in state court be manifest in a formal expression of state law serves two purposes-it ensures that removal is available only in cases where the predicted denial appears with relative clarity prior to trial and ensures that the task of prediction does not involve a detailed analysis by a federal judge of the likely disposition of particular federal claims by particular state courts, a task that would involve "federal judges in the unseemly process of prejudging their brethren of the state courts." Id. at 803-04, 86 S.Ct. 1783; see also 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3728 at 182-83 (3rd ed. 1998) (The purpose of the "denied or cannot enforce" provision of section 1443 is "to give state courts the power...