NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4727
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JOHN LOTT; SHEILA GANTZ;
BEAR MOUNTAIN REALTY
v.
JAMES S. DUFFY,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 1-13-cv-02768)
District Judge: Honorable Yvette Kane
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 12, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Opinion filed: September 4, 2014)
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OPINION
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PER CURIAM
Appellant James Duffy appeals from an order of the District Court remanding an
action against him to state court for lack of subject matter jurisdiction. For the reasons
that follow, we will dismiss the appeal in part for lack of jurisdiction and affirm in part.
Plaintiffs John K. Lott and Sheila Gantz, trading as Bear Mountain Realty,
commenced an action in ejectment against defendant-appellant James Duffy in the Court
of Common Pleas of Adams County, which was settled. The settlement provided that
Duffy would release any claim, interest, or title to the subject property, and would vacate
the property within ninety days. Instead of vacating the property, Duffy filed a Chapter 7
petition for bankruptcy in the United States Bankruptcy Court for the Middle District of
Pennsylvania. Lott and Gantz moved to lift the automatic stay of their state court
ejectment action, and the Bankruptcy Court granted this motion. The Chief Bankruptcy
Judge ordered and decreed that the automatic stay was terminated with respect to the
subject property, and that the ejectment action in state court could proceed. Duffy’s later
attempt to reimpose the automatic stay failed.
Lott and Gantz then returned to state court to enforce the settlement by initiating
contempt proceedings against Duffy. On June 7, 2013, the state court scheduled a
hearing on the motion for contempt. In response, Duffy removed the ejectment action to
the United States District Court for the Middle District of Pennsylvania, D.C. Civ. No.
13-cv-01580. Duffy alleged that removal was proper because of a procedural due process
issue concerning whether he had received proper notice of the contempt action and/or the
lifting of the automatic stay. Lott and Gantz filed a motion to remand the matter to state
court, contending that the Notice of Removal was filed more than 30 days after service of
the initial pleading in the ejectment action, and that the Notice of Removal was defective
in that there was no basis for federal jurisdiction. In an order entered on October 30,
2013, the District Court remanded the matter to the Adams County Court of Common
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Pleas, concluding that the ejectment action presented no federal question, 28 U.S.C. §
1331, and noting that a case may not be removed to federal court where a federal claim
would arise only as a defense to a state-created action, see Franchise Tax Bd. of
California v. Construction Laborers Vacation Trust, 463 U.S. 1, 13 (1983). The District
Court awarded attorneys’ fees to Lott and Gantz, see 28 U.S.C. § 1447(c), in the amount
of $350.00 because Duffy failed to advance any objectively reasonable grounds to
support his claim of federal question jurisdiction, Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005) (court may award attorneys’ fees as part of remand order where
removing party lacked objectively reasonable basis for seeking removal). Duffy did not
appeal this order of the District Court.
On November 13, 2013 – two days before he was scheduled to be evicted – Duffy
filed another Notice of Removal in federal court relating to the state court ejectment
action. Duffy alleged equal protection and due process violations in connection with an
“imminent threat of arrest and loss of property,” and claimed that the District Court had
jurisdiction under 28 U.S.C. § 1343 and 28 U.S.C. § 1443(1), which authorizes removal
of a state court action “[a]gainst 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.” The Notice of Removal was assigned a new civil action number, and Lott
and Gantz moved to dismiss it on the ground that the District Court’s prior remand
determination should not be disturbed by Duffy’s invocation of §§ 1343 and 1443(1). In
an order entered on November 14, 2013, the District Court granted the plaintiffs’ motion
and awarded attorneys’ fees against Duffy in the amount of $420. The court determined,
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as before, that the Adams County action in ejectment did not involve a federal question,
and that Duffy did not have an objectively reasonable basis for seeking removal. In
addition, the court concluded that Duffy did not meet the requirements for removal under
§ 1443(1) because he did not allege a violation of his constitutional right to racial
equality, and he did not allege facts from which it could reasonably be inferred that he
had been denied or could not enforce his constitutional right to racial equality in the state
courts.
Duffy appeals. He argues in his brief that we have jurisdiction to review the
District Court’s order pursuant to 28 U.S.C. § 1447(d) because removal in the first
instance was based on 28 U.S.C. § 1443(1). He also argues that the District Court erred
in awarding attorneys’ fees.1
We will dismiss the appeal in part for lack of jurisdiction and affirm in part. An
order remanding a case to the State court from which it was removed generally is not
reviewable on appeal. 28 U.S.C. § 1447(d); Feidt v. Owens Corning Fiberglas Corp., 153
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Duffy has also argued that, once the federal court issues a certified copy of the remand
order, it is completely divested of jurisdiction over the pending state action, see Trans
Penn Wax Corp. v. McCandless, 50 F.3d 217, 225 (3d Cir. 1995), and that, absent a
certified copy of the District Court’s October 30 remand order, the state court was
without jurisdiction to proceed on the contempt issue. See Appellant’s Pro Se Brief, at 8-
11. We note that, following the District Court’s October 30 remand order in D.C. Civ.
No. 13-cv-01580 relating to Duffy’s first Notice of Removal, he filed in that same action,
on November 19, 2013, an item titled “Emergency Motion for the Return of Parties
Status Quo,” in which he advised the District Court that no certified copy of the remand
order had ever been received by the Adams County Prothonotary. The District Court
denied this motion on November 21, 2013, and rejected Duffy’s argument about the
effect of a lack of formal certification. Duffy did not timely appeal this order, see Fed. R.
App. Pro. 4(a)(1)(A) (proving for 30 days in which to appeal), and, accordingly, we lack
jurisdiction to review it, Bowles v. Russell, 551 U.S. 205, 214 (2007) (timely filing of
notice of appeal in civil case is jurisdictional requirement).
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F.3d 124, 126 (3d Cir. 1998). Section 1447(d) provides for an exception where the case
was removed from State court pursuant to § 1443(1) governing civil rights cases, but,
here, the District Court’s remand order was based on a lack of federal subject matter
jurisdiction. The plaintiffs’ state court ejectment action contained no civil rights count or
claim and plainly could not have been filed initially in federal court; thus the exception
set forth in § 1447(d) does not apply. See Borough of West Mifflin v. Lancaster, 45 F.3d
780, 784 (3d Cir. 1995). A defense based on federal law does not establish federal
question jurisdiction for removal purposes, Caterpillar, Inc. v. Williams, 482 U.S. 386,
399 (1987). “[A] federal question must appear on the face of the complaint, and … the
plaintiff may, by eschewing claims based on federal law, choose to have the cause heard
in state court.” Id. The ejectment action filed by Lott and Gantz is governed by state
law, see Soffer v. Beech, 409 A.2d 337, 340-41 (Pa. 1979), and does not present a federal
question. Accordingly, the matter belongs back in state court.
Moreover, as explained by the District Court, section 1443(1) will support
removal only when the civil rights at issue involve matters of racial equality. Georgia v.
Rachel, 384 U.S. 780, 792 (1966). See also Johnson v. Mississippi, 421 U.S. 213, 219
(1975). Section 1443(1) applies only in rare cases. See Davis v. Glanton, 107 F.3d 1044,
1048-49 (3d Cir. 1997). To succeed at removal on this basis, a state court defendant must
allege a deprivation of rights guaranteed by a federal law providing for specific civil
rights stated in terms of racial equality. See id. at 1047. There was no allegation in the
District Court of racial discrimination, and Duffy does not seriously contest this issue on
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appeal in stating generally that removal petitions may be filed by members of the
Caucasian race, see Appellant’s Pro Se Brief, at 16.
Here, the District Court acted within its authority in determining that the ejectment
action presented no federal question and in determining that removal was not proper, 28
U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded.”), and, therefore, appellate
jurisdiction is lacking, see Feidt, 153 F.3d at 126 (“[W]e repeatedly have held that section
1447(d) bars review of remand orders based upon the types of subject matter
jurisdictional issues which district courts routinely make under section 1447(c).”). See
also Cook v. Wikler, 320 F.3d 431, 434 (3d Cir. 2003) (same).
We will affirm the order of the District Court to the extent of the award of
attorneys’ fees. Although § 1447(d) precludes us from reviewing the District Court’s
remand order for purposes of reversing it, we may review pursuant to 28 U.S.C. § 1291
the District Court’s award of attorneys’ fees under § 1447(c). See Roxbury
Condominium Ass’n Inc. v. Anthony S. Cupo Agency, 316 F.3d 224, 227 (3d Cir. 2003)
(citing 28 U.S.C. § 1291). “The appropriate test for awarding fees under § 1447(c)
should recognize the desire to deter removals sought for the purpose of prolonging
litigation and imposing costs on the opposing party, while not undermining Congress’
basic decision to afford defendants a right to remove as a general matter, when the
statutory criteria are satisfied.” Martin, 546 U.S. at 140. Therefore, whether fees are
awarded should turn on the reasonableness of the removal. See id. at 141. Duffy’s
second Notice of Removal was plainly unreasonable given the District Court’s
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disposition of his first Notice of Removal. Accordingly, the District Court did not abuse
its discretion in awarding attorneys’ fees in the amount of $450.00.
For the foregoing reasons, we will dismiss the appeal in part for lack of
jurisdiction and affirm in part.
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