Decision Date18 November 1971
Docket NumberCiv. No. 226-71.
Citation334 F. Supp. 490
PartiesHOUSING AUTHORITY OF the CITY OF NEWARK, a corporation of the State of New Jersey, Petitioner, v. Toby HENRY et al., Defendants.
CourtU.S. District Court — District of New Jersey

Brach, Eichler, Rosenberg & Silver, by William L. Brach, Newark, N. J., for petitioner.

Newark-Essex Joint Law Reform Project, by Michael Sayer, Gerard Clark, and Harris David, Newark, N. J., for defendants.


LACEY, District Judge:

This action was commenced in the Superior Court of New Jersey and was removed to this Court by the defendants, acting pursuant to 28 U.S.C. § 1443 (1), which provides as follows:

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; * * *.

The plaintiff then moved to remand under 28 U.S.C. § 1447(c):1

(c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.

The "right" which defendants' Petition for Removal asserts is "denied" or "cannot be enforced in the courts" of the State of New Jersey is claimed under 42 U.S.C. § 1981:2

§ 1981. Equal rights under the law
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

The § 1981 "right" is generated by the following facts. The plaintiff is a Housing Authority organized under N.J.S. 55:14A-1, et seq. It currently operates various housing projects in the City of Newark. The defendants are representatives of an association of tenants in certain of these projects. In April, 1970, numerous tenants began a so-called rent strike, pursuant to which they ceased to pay any rent. This step was taken to exercise economic leverage against the plaintiff to the end that recognition and suitable response would be forthcoming from the plaintiff of and to the tenants' demands for better living conditions in and about the concerned housing projects.

Negotiations ensued but fell short of substantial accomplishment. The plaintiff then commenced a state court action seeking, among other relief, appointment of a receiver to hold past and future rents pending resolution of the underlying substantive differences. At the same time, the plaintiff obtained from the New Jersey Superior Court a temporary restraining order which, the defendants' Removal Petition states, compelled delivery to a receiver of all rents theretofore collected by the tenants' representatives. The fact is, however, that in subsequent proceedings, by agreement of the parties, it was provided otherwise. There never has been a turnover of rents to a state court receiver, and the defendants have never presented to a state court their objections to the appointment of a receiver. In any event, shortly after commencement of the state action, defendants' Petition was filed. It articulates defendants' § 1981 "right" to engage in a rent strike and to collect but withhold rent money without disclosing its whereabouts. The state court appointment of a receiver, it is argued, "jeopardizes the ability of the tenants to wield any meaningful leverage" in achieving their ends; and it has the further effect, it is contended, "to create a firm prediction that these black tenants are being, and will be, prevented, under color of state law, from leasing or contracting for habitable conditions on the same basis as whites in this society. * * *"

The defendants have the burden of proving "that a federal court, a court of limited jurisdiction, has subject matter jurisdiction, and there is a presumption that a federal court lacks jurisdiction in a particular case until it has been demonstrated that subject matter jurisdiction exists. * * *" Footnote omitted Morgan v. Melchar, 442 F.2d 1082, 1085 (3 Cir. 1971).

Thus, the generous interpretation accorded a complaint on a motion to dismiss for failure to state a claim Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-926 (2 Cir. 1968) has no application to construction of a Removal Petition. Moreover, as has been stated (F.N. 1, supra), this Court can — indeed, must — dismiss cases for lack of subject matter jurisdiction, irrespective of the will of the parties or the practical considerations militating against dismissal. Morgan v. Melchar, supra, 442 F.2d at 1085; Berkowitz v. Philadelphia Chewing Gum Corp., 303 F. 2d 585 (3 Cir. 1962); and see Baker v. Riss & Co., 444 F.2d 257, 259 (8 Cir. 1971):

* * * Neither party has challenged the jurisdiction of the trial court or of this court. On the contrary, both parties assert jurisdiction exists. Subject matter jurisdiction cannot be conferred by consent. Federal courts have only such jurisdiction as is conferred upon them by Congress. It is our duty to satisfy ourselves as to the jurisdiction of the trial court and our own jurisdiction, whether or not the jurisdictional issue is raised.
* * *

We are urged to consider, in examining jurisdiction, that critical questions, of overriding significance, are substantively involved. We are told that the instant matter, if allowed to remain here, can be then consolidated with another controversy, resulting, it is said, in a greater likelihood of peaceful resolution of a frustratingly bitter confrontation. In another context, all this would merit and mandate reflection and consideration. At this procedural stage it is, quite simply, extraneous matter. This Court's jurisdiction is defined by Congress. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236, 11 L.Ed. 576 (1845); Morgan v. Melchar, supra, 442 F.2d at 1085; C. Wright, Federal Courts, § 10. Also, "Jurisdictional questions should be determined as early as possible in a litigation. Underwood v. Maloney, 256 F.2d 334, 340 (3 Cir.), cert. denied, 358 U.S. 864, 79 S.Ct. 93, 3 L.Ed. 2d 97 (1958)." Berkowitz v. Philadelphia Chewing Gum Corp., supra, 303 F. 2d at 588. We therefore must resist the temptation of the practical and address the threshold question of whether by law we have the power to entertain this case.

At the outset, a non-issue should be dispelled. We do not deal with that doctrinal dilemma of federal abstention versus federal primacy, a dilemma the horns of which, in this Circuit, are tagged, shaped and pointed by University Day Care Center, Inc. v. Temple University, 442 F.2d 1116 (3 Cir. 1971), and Lewis v. Kugler, 446 F.2d 1343 (3 Cir. 1971), respectively.3

The abstention cases, to a degee, illuminate the instant jurisdictional issue, underscoring, as they do, that we live under a federal system, which is largely dependent for its proper functioning upon the states' judicial branch.4See Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). Cf. Atlantic C.L.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). The issue is thus presented: Under all the circumstances, may this matter remain here, or shall it be returned to the state court? Put in less abstract terms, does the underlying but not frequently articulated generating rationale of § 1443(1), a distrust (not shared by this Court) of the States in the civil rights area, direct removal here; or should there be applied the doctrine of restraint, that § 1443(1) is a removal statute and hence to be strictly construed against the right of removal, thus honoring the corollary concept of deference to our federalism?5

The Law

Title 28 U.S.C. § 1443(1) permits removal to the federal district court in both civil and criminal cases commenced in state court against one who "is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights * * *."

As was stated by Chief Judge Seitz of this Circuit in Hill v. Commonwealth of Pennsylvania, 439 F.2d 1016, at 1019 (3 Cir. 1971), cert. applied for, 40 U.S. L.W. 3084 (7/16/71):

* * * To justify removal under this section, petitioners must demonstrate that (1) they rely upon a specific civil right stated in terms of racial equality, and (2) a clear prediction can be made that the right relied upon will be denied or not be enforceable in the state court. Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).

Defendants' Petition clearly meets the first requirement by invoking 42 U.S.C. § 1981.6 Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Hill v. Commonwealth of Pennsylvania, supra; Young v. I. T. & T. Co., 438 F.2d 757 (3 Cir. 1971); Hackett v. McGuire Bros. Inc., 445 F.2d 442 (3 Cir. 1971).

Defendants' briefs and oral argument advance, in addition to § 1981, other "laws providing for * * * equal civil rights" to sustain their removal: 42 U.S.C. § 1982, 42 U.S.C. § 2000d and 42 U.S.C. §§ 3604 and 3617, the latter two sections being a part of the Fair Housing Title (Title VIII) of the Civil Rights Act of 1968, and...

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  • Serritella v. Engelman
    • United States
    • U.S. District Court — District of New Jersey
    • February 24, 1972
    ...v. Hill, 439 F.2d 1016 (3 Cir. 1971), cert. denied, 404 U.S. 985, 92 S.Ct. 445, 30 L.Ed.2d 370 (1971); and Housing Authority of City of Newark v. Henry, 334 F.Supp. 490 (D.N.J.1971). We also have no need to decide whether there is independent jurisdiction over the statutory claim by virtue ......
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    • United States
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    • August 5, 2014
    ...right to violate the facially valid Village ordinance limiting the number of occupants in the dwelling”); Hous. Auth. of Newark v. Henry, 334 F.Supp. 490, 500 (D.N.J.1971) (FHA does not sanction rent strikes).Similarly, in this case, the Court finds that Respondents' counterclaims are not p......
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    ...808, 831 (1966); see also Water's Edge Habitat, Inc. v. Pulipati, 837 F. Supp. 501, 505 (E.D.N.Y. 1993); Hous. Auth. of Newark v. Henry, 334 F. Supp. 490, 495 & n.5 (D.N.J. 1971). A federal court must remand a removed case "[i]f at any time before final judgment it appears that the district......

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